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it is open for the police to conduct proper investigation, even after the Court took cognizance of any offence on the strength of a police report earlier submitted

http://indiankanoon.org/doc/807077/

Mustakali Mahmedbhai Shaikh And … vs State Of Gujarat And Ors. on 15 March, 2007
Equivalent citations: (2008) 1 GLR 140
Author: D Waghela
Bench: D Waghela

JUDGMENT

D.H. Waghela, J.

1. Being aggrieved by the rejection of their application by order dated 15-2-2005 of the learned Additional Sessions Judge, Mehsana in Sessions Cases Nos. 77 and 78 of 2004, the petitioners, original witnesses and aggrieved parties, have approached this Court with a prayer to set aside that order and direct further investigation.

2. The factual backdrop about which there is no controversy is that, on 28-2-2002, communal riots had spread to village Umta of Taluka Visnagar where the mob of about 1500 to 2000 persons had indulged in rioting and arson and the police was required to open fire. People belonging to one community had to flee or had to be rescued even as their homes and valuable goods worth lakhs of rupees were burnt, destroyed or damaged and two members of that community were alleged to have been killed. Pursuant to the complaint being C.R. No. 1-61 of 2002 dated 1-3-2002 registered at the instance of Assistant Sub-Inspector in Visnagar Police Station, investigation was carried out and charge-sheets were submitted in the Court, resulting into Sessions Case Nos. 77 and 78 of 2004 wherein 37 and 76 persons were accused of different offences including the offence under Sections 147, 148 read with Section 149, Sections 307, 302, 436, 427 and 337 read with Section 147, Section 201 read with Section 149 and Section 295 of Indian Penal Code, 1860 and both the cases were being tried together. After examination of no less than 36 witnesses, the petitioners herein submitted the application Exh. 74, making the grievance, inter alia, that the offences were not properly investigated, that several persons who were not living at the relevant time were shown as witnesses, that the dead bodies or the remains thereof were not discovered or recovered by the investigating agency and that the household goods and articles which were alleged to have been looted or damaged were not recovered, and hence, further investigation was required to be ordered. That application Exh. 74 was heard and decided on the same day by the handwritten order which is not fully legible and of which the typewritten copy annexed to the application is admittedly incorrect. However, as far as that impugned order could be deciphered, it appears that the learned Sessions Judge doubted the locus standi of the applicants and avoided detailed discussion of the evidence under the apprehension of affecting the plea or defence of any of the parties; but recorded the finding that there were lapses in the police investigation. The impugned order was concluded with the remarks that, since new construction had come up at the place and premises where the alleged offences were committed, there was no chance of collecting or tracing out any further material. The impugned order and reproduction thereof leaves a lot to be desired.

3. Challenging the aforesaid order, the petitioners have submitted in their petition that one Sipai Motekhan Misri Khan and Sipai Babbalkhan Dosabhai whose statements were recorded by police on 4-4-2002 were expired long back on 18-1-1989 and 23-11-1993 respectively and Sipai Adalkan Bastikhan, Shaikh Valimohmad Sultanbhai and Ismalbhai Kasambhai were also not surviving when their statements were supposed to have been recorded. It is averred that the investigating agency had not tried to recover remains of the deceased victims and no weapons were recovered from the accused persons. Similarly, the material looted by the accused persons on 28-2-2002 were also not recovered as muddamal articles and no police remand was sought by the investigating agency for that purpose. It was, on that basis, submitted that the application Exh. 74 was required to be allowed and further investigation was required to be carried out by an independent and competent officer.

4. Learned Counsel Mr. M.I.A. Shaikh, appearing for the petitioners relied upon judgment of this Court (Coram : M.B. Shah, J., as His Lordship then was) in Surendrabhai Babubhai Patel v. State of Gujarat 1985 GLH 299 : 1986 (1) GLR 313 wherein, after relying upon judgments of the Supreme Court in State of Bihar v. J.A.C. Saldenna and in Tula Ram v. Kishore Singh ,

it was held that there was no reason why the Court should not have the power to direct the authority to make further report under Section 173(8) of the Code of Criminal Procedure. He also relied upon the judgment dated 12-10-2004 of this Court (Coram : C.K. Buch, J.) in Shaikh Madinabibi Mustafabhai v. State of Gujarat in Criminal Revision Application No. 94 of 2004 (), in support

of the submission that the application of the petitioners could not have been dismissed on the plea of locus standi and the present revision application, upon the applicants being aggrieved by the impugned order, was also maintainable.

5. Learned Counsel relied upon recent judgment of the Supreme Court in Hasanbhai Valibhai Qureshi v. State of Gujarat and Ors. wherein the learned Sessions Judge had already framed charge and the trial Court was held to be free to add to or alter the charge, if the exigencies of the case so warranted. On the issue of further investigation, it was observed that the hands of the investigating agency or the Court should not be tied down on the ground that further investigation may delay the trial, as the ultimate object was to arrive at the truth. It is clearly held in Para 12 of the judgment that it is open to the police to conduct proper investigation even after the Court took cognizance of any offence on the strength of a police report earlier submitted, and it is further held that, if there were necessity for further investigation, the same can certainly be done as prescribed by law and the likelihood of delay in conclusion of the trial should not stand in the way of further investigation, if that would have helped the Court in arriving at the truth and do real and substantial as well as effective justice.

6. Learned Counsel for some of the accused persons, Mr. Vijay H. Patel, vehemently argued that the application for further investigation was made with the ulterior motive of delaying the trial while more than 100 accused persons were facing the trial since several years and about 38 witnesses were already examined. He submitted that even as the statements and reports of investigation dated 14-9-2002 and 27-10-2003 were submitted in the Court and the petitioners were represented by their own Advocates, no grievance was made for three years about incorrect statements having been recorded by the investigating agency. He further submitted that the accused persons were likely to suffer prejudice and harassment, even as they were on bail, if investigation were reopened and the trial were to be delayed. He relied upon recent judgment of this Court (Coram : J.R. Vora, J.) in Miteshkumar Rameshbhai Patal v. State of Gujarat and Anr. and

cited the legal proposition laid down therein that no Court can direct further investigation under Section 173(8) of the Criminal Procedure Code after taking cognizance upon police report.

7. Learned A.P.P. appearing for the State submitted that the alleged offences were properly investigated and the Investigating Officer had taken all the necessary steps for collecting the material and evidence after which two reports of investigation as aforesaid were submitted to the Court in September, 2002 and October, 2003. Pursuant to the earlier order dated 25-7-2005 herein, the statements of the petitioners recorded by the police during the investigation along with few panchnamas and applications made to the Court as well as some reports of Forensic Science Laboratory were submitted for perusal and in support of the argument that the investigating agency had pursued the matter as far as it could in the prevailing circumstances. It was pointed out that a bone found during investigation was sent for F.S.L. report, but it was found not to be a bone of any human body; and blood samples collected from another spot where another victim was stated to have been assaulted with deadly weapons, was on analysis found to be human blood but no further evidence of killing of any person could be found. He however, fairly conceded that, if the Court were to find serious lapses in the investigation and/or further investigation, the State shall abide by the order and submit a report of further investigation as expeditiously as practicable.

8. It was seen from bare reading of the impugned order that the application of the petitioners was rejected by a perfunctory reference to the averments, without appreciating the serious grievance and mainly on the ground that new construction had come up at the places of alleged incidents. It was seen from the few papers of investigation produced and perused before this Court by learned A.P.P. that lack of serious investigation for tracing out the dead bodies or remains thereof, of the persons alleged to have been killed, as also the lack of attempt at tracing out valuable goods alleged to have been looted from the houses of victims of the offences was apparent and investigation of death of one of the victims had stopped at collecting the samples of blood and getting analysis report thereof. Learned A.P.P. had submitted in defence of the investigating agency that some of the persons named by the victims were nabbed, arrested and taken into police custody for one day for the purpose of investigation. However, the applications for remand for a further period of number of suspected accused persons were summarily rejected by the Court, and therefore, the investigation was admittedly handicapped, particularly during the period when the police force was under pressure to control the riots and restore law and order.

9. In view of the above facts and submissions, it clearly emerges from the record that there were several serious lapses and lacunae in the investigation carried out before submission of the charge-sheet and even without an application in or order of any Court, further investigation was required to be carried on, in exercise of powers entrusted to the investigating agency under the provisions of Sub-section (8) of Section 173 of the Criminal Procedure Code, 1973 (for short, “the Code”). As observed by Supreme Court in Hasanbhai Valibhai Qureshi 2004 AIR SCW 2063 the ultimate object of investigation and trial is to arrive at the truth and the prospect of delay in conclusion of the trial must not come in the way of unearthing the necessary evidence and the truth as far as it is possible and admissible. The judgment of this Court in Miteshkumar Rameshbhai Patel heavily relies upon earlier judgment of the Supreme

Court in Randhir Singh Rana v. State (Delhi Administration) as wherein it was observed that a Magistrate, after taking cognizance of an offence on the basis of police report and after appearance of the accused, cannot of his own, order further investigation in the case. In the facts of that case, the trial had reached to the stage of recording of deposition of 85 witnesses out of 96 witnesses. Relying upon that judgment in Randhir Singh Rana the Court held that after taking cognizance, the

Court cannot direct the police, on its own, to investigate further under Section 173(8) of the Code.

10. It was submitted and noticed that the Supreme Court had, while ordering investigation under Section 173(8) of the Code in Zahira Habibulla H. Sheikh and Anr. v. State of Gujarat and Ors. observed in Para 78 as under:

78. Since, we have directed retrial, it would be desirable to the investigating agency or those supervising the investigation, to act in terms of Section 173(8) of the Code, as the circumstances seem to or may so warrant. The Director General of Police, Gujarat is directed to monitor reinvestigation, if any, to be taken up with the urgency and utmost sincerity, as the circumstances warrant.

It was further observed in Para 79 that Sub-section (8) of Section 173 of the Code permits further investigation, and even de hors any direction from the Court as such, it is open for the police to conduct proper investigation, even after the Court took cognizance of any offence on the strength of a police report earlier submitted.

11. Therefore, in the peculiar facts and following the ratio of judgments of the Supreme Court in Hasanbhai v. Qureshi (supra) and Zahira H. Sheikh (supra) as discussed hereinabove, the petition is allowed, the impugned order dated 15-2-2005 below Exh. 74 is set aside and respondent No. 1 is directed to hold further investigation and submit report of such further investigation as expeditiously as practicable. It would be in the discretion of the State Government to entrust further investigation to an officer of appropriate rank. However, it was suggested and conceded at the Bar that further investigation must be carried out by an independent and competent officer under the supervision of the District Superintendent of Police and the report may be submitted to the Court, as far as practicable, on or before 15-5-2007. Such officer or the D.S.P. concerned may receive representations proposed to be made on behalf of the petitioners on particular aspect of investigation. Further proceedings of the Sessions Cases Nos. 77 and 78 of 2004 pending in the Court of learned Additional Sessions Judge, Mehsana shall have to remain stayed till the report of further investigation is submitted. Rule is made absolute accordingly with no order as to costs. Direct Service is permitted. The registry of this Court is directed to place before the Standing Committee or the Committee reviewing performance of Fast Track Courts, the impugned order with a properly typed copy thereof.

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Categories: further investigation

the powers of the police to further investigate under Section 173(8), are unfettered and when trial is proceeding, police may inform concerned Court about further investigation, but no Court can direct such investigation under Section 173(8), after taking cognizance upon the police report

http://indiankanoon.org/doc/1023986/

Miteshkumar Rameshbhai Patel And … vs State Of Gujarat And Anr. on 23 February, 2006
Equivalent citations: 2006 CriLJ 3198, (2006) 3 GLR 1935
Author: J Vora
Bench: J Vora

JUDGMENT

J.R. Vora, J.

1. At the admission stage, since submissions made at length, the matter was heard finally and learned counsels also agreed for final hearing of the matter.

2. Learned advocate Mr. Asin Pandya for the applicants, learned APP Mr. K.C.Shah for the respondent No. 1 ” State of Gujarat and learned advocate Mr. M.A. Bukhari for the respondent No. 2 ” Shri Ismail U. Vohra, were heard at length.

3. The present applicants are amongst the accused of Sessions Case No. 199 of 2003 pending before the Court of Sessions i.e. Fast Track Court Judge, at Anand, while respondent No. 1 is the State and the respondent No. 2 herein is the witness of the said trial and filed an application at Ex.245 on 01.03.2005. It was contended by such application that the investigation was biased in favour of the accused and was defective and hence re-investigation was necessary. It was stated that the persons affected in the incident were robbed of their valuables as well as cash amount, but the said muddamal has not been attempted to be recovered in the said investigation. It was also contended that the Investigating Agency in formal manner inquired from the witnesses and no careful inquiry was made. It was also contended that the statements of witnesses were not recorded as per the say of a particular witness. The investigating agency failed to assess the damage done at the spot. It was alleged that the accused were trying to fabricate false evidence. If, the trial is allowed to proceed further, it would be in the benefit and only in the benefit of the accused. It was also contended further that the witnesses have suffered mental as well as economic loss, even though they have sustained their morale. It was, therefore, urged that the re-investigation in the crime was necessary.

4. After hearing all the concerned parties, the learned Additional Sessions Judge as well as Fast Track Court Judge, on 21.07.2005 decided application with a short observation that having considered the complaint, statements of the witnesses and investigating papers as well as evidence recorded during trial, it was in the interest of justice to order re-investigation. It was further directed that not only in respect of muddamal only, but investigating agency must report to other aspects which requires investigation.

5. The above said order passed by the learned trial Judge on 21.07.2005 is impugned in this Criminal Revision Application by the applicants ” accused.

6. As per the further facts of the case, it appears that the incident in question is an aftermath of Godhra carnage and on 01.03.2002 at about 16.30 hours, a Masjid situated at Vasad was put on fire by a mob. The said mob of persons not only damaged the Masjid, but pelted stone etc. on informant as well as upon the witnesses. Many accused were charge-sheeted in respect of this crime registered before Vasad Police Station vide C.R.No.I-49/2002. The complainant i.e. informant was a constable Harising Noparam Jaat of S.R.P., Group No. 10, Company No. D. After investigation, it appears that charge-sheet came to be filed against many accused and learned trial Judge framed the charge against 53 accused on 16.06.2004 for the offences punishable under Sections 147, 148, 149, 436, 332, 337, 153(3), 454, 457 and 380 of the Indian Penal Code and under Section 135 of the Bombay Police Act, 1951. The trial was proceeded with, it has been submitted at Bar that out of 96 witnesses cited in the charge-sheet, 85 witnesses have been examined and at that stage an application Ex.245 came to be filed by the present respondent No. 2.

7. Learned advocate Mr. Asin Pandya for the applicants submits that having regard to the stage reached by the trial, it appears that the re-investigation, as directed, would be in violation of double jeopardy principle enunciated in the Constitution of India, because the accused will have to face altogether a new case which is not permissible under the law. Contending further, it was also submitted that in any case, law would not permit re-investigation. It was contended that in certain circumstances, as envisaged by Section 173(8) of the Code of Criminal Procedure, further investigation may take place, but not re-investigation in the spirit and terms of the direction issued by the trial Judge in the order impugned. Learned advocate for the applicants relying upon the decision of the Apex Court in the matter of K. Chandrasekhar v. State of Kerala and Ors. as reported in AIR 1998 S.C. 2001, contended that literal reading of the provision of Section 173(8) of the Code of Criminal Procedure in unequivocal terms discloses that it does not authorize Magistrate or the Court concerned to direct re-investigation, but the provision enables the investigating agency to further investigate. It is submitted that it is nowhere laid down in the Code that the Magistrate is empowered to order further investigation or reinvestigation within the scope of Section 173(8) of the Code of Criminal Procedure. Then, it is contended that the order impugned is non-speaking order, as almost no reasons are assigned for passing of the order. It is submitted that when such non-speaking orders are passed and are subjected to scrutiny of higher forum, it becomes very difficult to assess that how the Court below reached to the conclusion. It is submitted that the order impugned is required to be quashed on this ground alone. With reference to this contention, learned advocate agitated that the impugned order is not sustainable even on merits, as well. It was submitted that the investigation is carried out and charge-sheet is filed, the accused are facing the trial. Now at this juncture, there is nothing on the record to deduct that the investigation was faulty and defective on certain aspects. It is, therefore, submitted that the learned trial Judge though referred to investigation papers, but could not point out any defects in investigation so as to direct reinvestigation. It is contended that therefore, the order impugned is unreasoned order and not sustainable. The learned advocate for the applicant raised contention about the merits of the order passed by the learned trial Judge by going through the investigation papers. Lastly, it was submitted that in all cases, it is required to be taken into account effects of passing of the orders and non-passing of the orders. It was submitted that almost 85 witnesses, out of 96, have already been examined and the trial is at the verge of completion. It is submitted that if, re-investigation is permitted, as directed by the learned trial Judge, the same shall affect adversely to the accused. It was contended that on account of this, the trial is certainly going to be delayed to a greater extent. It is submitted that these circumstances if viewed with the fundamental right of the accused of speedy trial, the order impugned requires to be quashed. It is submitted that the application, therefore, filed by the respondent No. 2 is frivolous and filed at very belated stage with only purpose of delaying the trial and to put the accused in greater hardship. Learned advocate contended that for the above said reasons, this Criminal Revision Application is required to be allowed and the order impugned be set aside.

8. Learned APP Mr. K.C.Shah for the respondent No. 1 ” State of Gujarat contended that while an application is filed by a witness of a trial may be at any stage and may be in any nature, but all circumstances including motive behind filing of an application must receive due consideration. It is submitted that in application itself, it is stated by the applicants that the witness suffered mental as well as the financial damage. Learned APP submitted that therefore, motive behind moving this application by the witness is obvious. It is submitted by the learned APP that the scheme of Code of Criminal Procedure as well as in pursuance of the criminal jurisprudence of this country, prosecution always comes before the Court with a definite case and version against the accused. The Courts are empowered to punish the accused against whom such definite version is proved. It is beyond the scheme of the Code and Criminal Justice System that the accused be attempted to punish for any probable version deviating from definite version which prosecution comes before the Court. It was submitted that in any case, it is not the criminal law of the country that by altering the original investigation and amending the definite case of the prosecution, accused can be pushed to face the new case. It is submitted that therefore, while no re-investigation is permitted by the Court, only further investigation under Section 173(8) of the Code of Criminal Procedure is made permissible and it is obvious by the scheme of the Code that Section 173(8) is exceptional in nature, must operate within very limited scope. It is submitted that within the definite version of the prosecution which is brought to the Court, if any Court is satisfied that any person was liable to answer the prosecution case, the proper provision is made vide Section 319 of the Code of Criminal Procedure. It is submitted that once the First Information Report is lodged, investigation starts in accordance with the said F.I.R., if that is not done, other remedies might be available to the aggrieved persons. It is submitted that despite the above clear concept of law, how a witness of a trial can substantively appreciate the circumstances of the investigation and come to a conclusion that the investigation was defective. It is submitted that virtually in this case, the witnesses of the trial appreciated the investigation and came to the conclusion that the investigation is defective and is biased on certain aspects and that appreciation of a witness has been affirmed by the trial Court and invoked the powers under Section 173(8) of the Code of Criminal Procedure. In such a situation, it was submitted that before invoking powers, the trial Court ought to have taken into account all those essential elements of the matter.

9. Learned advocate Mr. M.A. Bukhari for the respondent No. 2, vehemently supporting the order impugned, submitted that this is a fit case in which reinvestigation or further investigation whatsoever be sought, was absolutely necessitated as noticed by the learned trial Judge. My attention was drawn to two applications placed on record of the trial. Learned advocate for the respondent No. 2 submitted that vide application Ex.255 which is a report from the investigating agency, it was pointed out by the trial Court that in certain respect re-investigation in the matter was necessary and, therefore, the papers submitted before the trial Court were required to be returned to investigating agency. The investigating agency described in the said report the aspect of the reinvestigation which was necessary. Learned advocate for the respondent No. 2 drawn attention of the Court towards the order passed below this application that ultimately Ex.255 came to be withdrawn by a concerned learned APP in-charge of the case. It was, then, contended that the present respondent No. 2, thereafter, preferred an application at Ex.267 invoking powers of the trial Judge to direct the investigating agency to observe certain recognized guidelines, while investigating or re-investigating the crime. My attention was drawn to the order passed below that application. The learned trial Judge disposed of the said application stating that in view of the order passed below Ex.245 (order impugned in this Criminal Revision Application), the said application stood disposed of. Learned advocate for the respondent No. 2, therefore, submitted that this situation compelled the respondent No. 2 herein being a witness to prefer an application at Ex.245 to re-investigate the crime. It is submitted that all particulars which are necessary, are mentioned in the application. My attention was drawn to paras-2 and 3 of the application, wherein the defects and short coming of the investigation was brought out along with reasons for re-investigation of the crime. It was submitted that therefore, it cannot be said that the application itself is not explanatory. It was submitted that likewise, there is no substance in the contention that the order passed by the trial Judge, is not a speaking order. It was submitted that though the order passed is short one, but sufficiently reasoned. My attention, at this juncture, was drawn to the order passed and it was contended that the trial Judge did care to go through the papers of the investigation, statements recorded, first information report filed as well as the evidence recorded during the trial. It is submitted that going through all the papers, the trial Judge came to the conclusion that the case was fit one to direct re-investigation. Learned advocate for the respondent No. 2 submitted that in no circumstances, it could be said that the order impugned, is not sustainable because the same is without any reasons. It is submitted that the Court concerned was within its power to direct further investigation at any stage of trial to which the facts like delay of trial, hardship to the accused are irrelevant factors. Learned advocate for the respondent No. 2 placed reliance on a decision of the Apex Court in the matter of Hasanbhai Valibhai Qureshi v. State of Gujarat and Ors. as reported in 2004 (2) Crimes 145 (S.C.), wherein the Apex Court observed that the factor of delay of trial must not deter the hands of the investigating agency or the Courts where further investigation is, according to law, necessity. Learned advocate for the respondent No. 2 submitted that the order in question is perfectly legal and reasoned order and should not be interfered with in the revisional jurisdiction as the High Court should be slow in setting aside the proper orders of the trial Court in revisional jurisdiction, as aforesaid.

10. Having heard learned counsels at length and having gone through the record of the case, available with this Court, undisputed position is stage of trial. There is no dispute that against 53 persons including the present applicants, the above said charge-sheet was filed, charge was framed and trial culminated to the extent of examining 85 witnesses out of 96 witnesses, cited in the charge-sheet and at that juncture, an application Ex.245 for re-investigation came to be submitted, as aforesaid.

11. It appears that there is some confusion about the re-investigation and further investigation. What is empowered by Section 173(8) of the Code of Criminal Procedure is further investigation and not re-investigation. This is amply made clear by the Apex Court in a decision, in the matter of K. Chandrasekhar v. State of Kerala and Ors. (Supra). It has been observed by the Apex Court in para-25 as under:-

25. From a plain reading of the above Section it is evident that even after submission of police report under Sub-section (2) on completion of investigation, the police has a right of further investigation, under Sub-section (8) but not fresh investigation or re-investigation. That the Government of Kerala was also conscious of this position is evident from the fact that though initially it stated in the Explanatory Note of their notification dated June, 27, 1996 (quoted earlier) that the consent was being withdrawn in public interest to order a reinvestigation, of the case by a special team of State police officers, in the amendatory notification (quoted earlier) it made it clear that they wanted a further investigation of the case, instead of re-investigation of the case. The dictionary meaning of further (when used as an adjective) is additional, more supplemental. Further investigation therefore is the continuation of the earlier investigation and not a fresh investigation or reinvestigation to be started ab initio wiping out the earlier investigation altogether. In drawing this conclusion we have also drawn inspiration from the fact that Sub-section (8) clearly envisages that on completion of further investigation the investigating agency has to forward to the Magistrate a further report or reports ” and not fresh report or reports ” regarding the further evidence obtained during such investigation. Once it is accepted ” and it has got to be accepted in view of the judgment in Kazi Lhendup Dorji, (1994 AIR SCW 2190) (supra) that an investigation undertaken by CBI pursuant to a consent granted under Section 6 of the Act is to be completed, notwithstanding withdrawal of the consent, and that further investigation is a continuation of such investigation which culminates in a further police report under Sub-section (8) of Section 173, it necessarily means that withdrawal of consent in the instant case would not entitle the State police, to further investigate into the case. To put it differently, if any further investigation is to be made it is the C.B.I. alone which can do so, for it was entrusted to investigate into the case by the State Government. Resultantly, the notification issued withdrawing the consent to enable the State Police to further investigate into the case is patently invalid and unsustainable in law. In view of this finding of ours we need not go into the questions, whether Section 21 of the General Clauses Act applies to the consent given under Section 6 of the Act and whether consent given for investigating into Crime No. 246/94 was redundant in view of the general consent earlier given by the State of Kerala.

12. It is necessary to state the factual background of the case before the Apex Court. The State Government had consented for entrustment of investigation in a case involving offences punishable under official Secrets Act to the CBI. CBI completed investigation and filed a final report. Subsequently, the State Government withdrew the consent and sought further investigation in the case by the State Police. In those backdrops, the Apex court held as above.

13. True it is that in the application at Ex.245 and the order passed by the learned trial Judge which is impugned, the phraseology used is reinvestigation. Any how, reinvestigation is not permissible as observed by the Apex Court in decision mentioned above. Now without dwelling further upon this issue, assuming that trial Court meant further investigation and when it is not directed that the earlier investigation made in the case is to be wiped out ab-initio, without being guided by the phraseology used as re-investigation, it may be considered that in fact, re-investigation referred to is de facto a further investigation.

14. Now the matter in controversy is to examine the order impugned within the revisional jurisdiction of this Court. Various contentions, as aforesaid, are raised on diverse aspects. In sum and substance, pivot of the matter is whether learned trial Judge could have passed order for further investigation as has been done in this case.

15. Section 173(8) of the Code of Criminal Procedure authorises amply to the investigating agency to investigate further in a crime. Placement of this provision at the bottom of Section 173 denotes that even after filing of the final report (charge-sheet) and during trial as well, the investigating agency is empowered to investigate further the crime and submit report in consonance with earlier provision of Section 173 and if such report is produced to concerned Court, it would be obliged to take that into consideration. Noteworthy it is here to refer to a decision of the Apex Court in the matter of Hasanbhai Valibhai Qureshi v. State of Gujarat and Ors.(Supra) wherein the Apex Court, while examining the powers of investigating agency came to the conclusion that if a further investigation is warranted, the hands of the investigating agency or the Court should not be tied down on the ground that further investigation may delay the trial, as ultimate object is to arrive at the truth. The Apex Court also observed that under Section 173(8) of the Code of Criminal Procedure, it is open to the police to conduct the proper investigation, even after the Court took cognizance of any offence on the strength of a police report earlier submitted. The Apex Court further observed that such powers of the police must not be tied down by the mere fact that there may be further delay in concluding the trial because if such further investigation would have helped the Court in arriving at the truth and do real and substantial as well as effective justice, such facts should not stand on the way of further investigation.

16. Thus, in above said decision, the Apex Court propounded that without being influenced by the fact that the charge-sheet is filed, and even if the Court has taken cognizance and the trial has started, powers of police to investigate under Section 173(8) are unfettered, if such further investigation helps the Court to search the truth.

17. Thus it cannot be disputed that even after filing of the charge-sheet and taking cognizance by the Court, the police has ample power to investigate further the crime under Section 173(8) of the Code of Criminal Procedure. However, the controversy in the present matter is, not the powers of the police to further investigate under Section 173(8) of the Code of Criminal Procedure, but the controversy is whether the trial Court after taking cognizance and reaching to almost completion of the trial, can direct further investigation as envisaged by Section 173(8) of the Code of Criminal Procedure. Learned advocate for the respondent No. 2 has supported the proposition of law that powers of the Court under Section 173(8) of the Code of Criminal Procedure, which is competent to take cognizance, are unfettered and in a given case, the Court may direct police to investigate further even after taking cognizance and while conducting of the trial, if defects in the investigation are noticed. Before entertaining the merits of the case, whether on going through the investigating papers, this was a fit case for the trial Judge to order investigation under Section 173(8) of the Code of Criminal Procedure. It would be proper to examine, whether after taking cognizance, the Court has power to direct further investigation.

18. Section 173(8) of the Code of Criminal Procedure, is as under:

173(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under Sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of Sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under Sub-section (2).

19. By virtue of Section 173 of the Code of Criminal Procedure, no powers are conferred upon the Court to direct further investigation. In this respect, two decision of this Court are brought to the notice of this Court and they are (1) In the matter of Surendrabhai Babubhai Patel v. State of Gujarat as reported in 1985 G.L.H. 299; and (2) In the matter of Mahendra P. Desai v. The State of Gujarat and Ors. as reported in 1985 G.L.H. 873. In the matter of Surendrabhai Babubhai Patel v. State of Gujarat, it is observed that by virtue of Section 173(8) of the Code of Criminal Procedure, the investigating officer is entitled to carry on further investigation with the permission of the Court, and there would be hardly any reason to hold that the Magistrate is not empowered to direct the investigating officer to make further investigation once he takes the cognizance. While in the matter of Mahendra P. Desai v. The State of Gujarat and Ors. this Court observed that as observed by the Supreme Court in the case of Rishbud v. The State of Delhi (1955) 1 SCR 1150, further investigation is not altogether ruled out merely because cognizance of the case has been taken by the Court and further investigation can be ordered even after the charge-sheet is submitted.

20. Therefore, the question is after taking the cognizance and when the trial is reached to certain stage, whether Court can direct further investigation as envisaged by virtue of Section 173(8) of the Code of Criminal Procedure. It is absolutely necessary to refer here the decision of the Apex Court, in the matter of Randhir Singh Rana v. State (Delhi Administration) as reported in 1997 (1) SCC 361, because the same issue was before the Apex Court which is at hand in this matter and while considering the provisions of Sections 156(3), 173(8), 190, 200 and 204 of the Code of Criminal Procedure, the Apex Court propounded in unequivocal terms that a Judicial Magistrate, after taking cognizance of an offence on the basis of police report and after appearance of the accused, cannot order of his own further investigation in the case. It was held in the said case that the order of the Magistrate directing further investigation was liable to be set aside with a direction to dispose of the case either by framing the charge or discharge the accused on the basis of the material already on the record. Many decisions of the Apex Court came to be discussed by the Apex Court in this decision and ultimately it has been held that it is not within the power of the Court to order further investigation under Section 173(8) of the Code of Criminal Procedure, after taking cognizance upon the police report and when accused were appeared before the Court. While in this case, the learned Judge has not only taken cognizance upon the police report, but trial has reached to the stage of recording of deposition of 85 witnesses out of 96 witnesses and at that stage, at the instance of a witness, the Court has directed further investigation that too, under Section 173(8) of the Code of Criminal Procedure. It is noticed while going through the provision of Section 173(8) that such powers are not conferred upon the Courts. By virtue of Section 156 of the Code of Criminal Procedure and the provisions thereafter before taking cognizance upon the police report, the Court is empowered to direct further investigation. However, once cognizance is taken and the trial is proceeded with, the Court is not empowered to alter the prosecution case by directing the further investigation. Therefore, by scheme of the Code, powers are vested in the Court, by virtue of Sections 319 and 311 of the Code of Criminal Procedure to the extent to call for any person to answer the prosecution case. The powers of the police to investigate further under Section 173(8) and power of the Court to direct further investigation at pre-cognizance stage must not be intermingling. The powers of the police under Section 173(8) to investigate further even when charge-sheet is filed and Court has taken cognizance are unfettered, but the Court, after taking cognizance cannot direct the police on its own to investigate further under Section 173(8) except such powers can be exercised at pre-cognizance stage by Courts. In the present case, it appears that the order passed by the trial Court is without jurisdiction as aforesaid discussed by the Apex Court in the matter of Randhir Singh Rana (Supra). Therefore, it becomes clear that the powers of the police to further investigate under Section 173(8), are unfettered and when trial is proceeding, police may inform concerned Court about further investigation, but no Court can direct such investigation under Section 173(8), after taking cognizance upon the police report.

21. This is the crux of the controversy which arises in this Criminal Revision Application and the confusion is created perhaps on account of intermingling the powers of the police to investigate further in a crime, by virtue of Section 173(8) of the Code of Criminal Procedure and the powers of the Court to direct such investigation and hence the trial Court probably passed the order impugned.

22. In this view of the matter, this Criminal Revision Application deserves to be allowed and the order for which the grievance is made is required to be set aside and the application, ultimately, filed by respondent No. 2 at Ex.245 stands rejected. Rule is made absolute to that extent. Absolutely necessary also to make it clear at this juncture that if any investigation is carried on by the police under Section 173(8) of the Code of Criminal Procedure in respect of the present crime independently of the order impugned in this revision, then the said investigation shall not at all be affected and influenced by the present order passed by this Court.

Categories: further investigation

SC: Under sub-section (2) and sub- section (8) of Section 173, even after submission of police report under sub-section (2) on completion of investigation, the police has a right to “further” investigation under sub-section (8) of Section 173 but not “fresh investigation” or “reinvestigation”. The meaning of “Further” is additional; more; or supplemental.

http://indiankanoon.org/doc/629979/

Java Singh vs Cbi on 6 May, 2009
Author: Reva Khetrapal

REPORTED

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% DATE OF RESERVE: April 22, 2009 DATE OF DECISION: May 6, 2009

+ CRL.M.C. 2525/2008 and CRL. M.A. 9326/2008

JAVA SINGH ….. Petitioner Through: Mr. Sidharth Luthra, Sr. Advocate with

Mr. Siddharth Aggarwal and Mr. Simon

Benjamin, Advocates.

versus

C.B.I. ….. Respondent Through: Mr. P.P. Malhotra, ASG with Mr. Chetan

Chawla, Advocate

CORAM:

HON’BLE MS. JUSTICE REVA KHETRAPAL

1. Whether reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not?

3. Whether judgment should be reported in Digest? : REVA KHETRAPAL, J.

1. The present petition under Section 482 of the Code of the Criminal Procedure has been filed challenging the summoning order issued by the learned Special Judge, New Delhi dated 21st July, 2008 as well as the challan under Section 173 Cr.P.C., which is alleged to be “incomplete” and in contravention of the provisions of Section 190 Cr.P.C.

2. The facts leading to the filing of the petition are that FIR bearing No.RC CRL.M.C. 2525/2008 Page No. 1 of 19 2(A)/2005 ACU (V) dated 19th March, 2005 under Sections 13(2) read with 13(1)(e) of the Prevention of Corruption Act came to be registered at P.S. C.B.I./SPE/ACU(V), New Delhi. The aforesaid FIR was initially registered against one Shri Akhand Pratap Singh (Retd. IAS), the father of the petitioner herein, and was registered on the allegation that he possessed assets disproportionate to his known sources of income almost two years after his retirement. The period of commission of the offence was set out as 01.01.1978 to 31.05.1991 in the FIR and it was alleged that the acquisition of the disproportionate assets were to the tune of Rs.21,45,872/- (Rupees Twenty One Lakhs Forty Five Thousand Eight Hundred and Seventy Two only) during the said period. The investigating agency conducted investigation and after a period of three years, on 27th / 28th March, 2008, it submitted a report under Section 173 Cr.P.C. before the Court of the learned Special Judge, New Delhi. In the said report filed by the CBI on 27th / 28th March, 2008, it was submitted that “Further investigation on certain aspects is going on” and that “The report in respect of the same will be submitted in due course”.

3. The grievance of the petitioner is that on the basis of the said report filed under Section 173 Cr.P.C., the learned Special Judge by his order dated 21st July, 2008 took cognizance of the offences under Sections 13(2) read with 13(1)(e) of the Prevention of Corruption Act, 1988 and Sections 109, 120-B, CRL.M.C. 2525/2008 Page No. 2 of 19 467 and 471 of the Penal Code and ordered issuance of summons to the accused persons, including the petitioner.

4. Aggrieved by the filing of the report dated 27th / 28th March, 2008 and the consequent taking of cognizance and issuance of summons by means of order dated July 21, 2008, the petitioner instituted the present petition seeking quashing of the impugned order and the report under Section 173 Cr.P.C. which, according to the petitioner, is an “incomplete” report irrespective of the nomenclature sought to be given to it.

5. I have heard Mr. Sidharth Luthra, the learned senior counsel for the petitioner and Mr. P.P. Malhotra, the learned Additional Solicitor General for the respondent/Central Bureau of Investigation and gone through the impugned order as well as the relevant provisions of law adverted to by the parties.

6. The principal contention of Mr. Luthra, the learned senior counsel for the petitioner is that the filing of a temporary report during the course of an on-going investigation is an act not contemplated by the legislators as evidenced by the relevant provisions of the Cr.P.C. and as such, the report dated 27th / 28th March, 2008 which is not a “police report” within the meaning of Section 173 Cr.P.C. ought to be rejected. Mr. Luthra vehemently contended that there was a vital difference between the terms “investigation”, “further investigation” and “re-investigation”. He urged that admittedly in the instant CRL.M.C. 2525/2008 Page No. 3 of 19 case, the investigation itself had not been completed on the date of the filing of the report, and that taking of cognizance and issuance of summons to the accused persons whilst the investigative process is still on-going is unknown to law and in violation of the basic jurisprudential tenents of criminal law. Thus, the cognizance taken in the instant case under Section 190(1)(b) is illegal and liable to be set aside, since the very foundation or basis of the said cognizance, being a police report, does not exist.

7. Mr. Luthra submitted that further investigation predicates the existence and discovery of fresh material and necessarily implies the exhaustion of the material already in possession of the investigating agency. While sub-section (2) of Section 173 deals with the forwarding of the police report on completion of the investigation, sub-section (8) of Section 173, which has been subsequently incorporated in the Code, deals with further investigation. Re- investigation, on the one hand, is quite different and distinct from further investigation and predicates investigation anew, which may be necessitated on account of the earlier investigation having been found to be faulty on account of one reason or the other.

8. According to Mr. Luthra, the principal requirement for invoking sub- section (8) of Section 173 is that there must be a report filed in terms of sub- section (2) of Section 173. In the instant case, Mr. Luthra submitted that the CRL.M.C. 2525/2008 Page No. 4 of 19 police report was an “incomplete” report, and, accordingly could not be taken into consideration by the learned Special Judge, CBI for the purpose of taking cognizance of the the offences alleged to have been committed by the petitioner and others.

9. Mr. Luthra, the learned senior counsel for the petitioner placed strong reliance on a Single Bench judgment of the Delhi High Court in Hari Chand & Raj Pal vs. State reported in ILR (1977) II Delhi 367 and on a judgment of a Single Judge of the Andhra Pradesh High Court rendered in T.V. Sarma vs. Smt. Turgakamala Devi and others reported in 1976 Crl. L.J. 1247 to contend that if the investigation is not complete, there is no police report, and consequently there is no question of the Court taking cognizance of the case on an incomplete challan.

10. Mr. P.P. Malhotra, the learned Additional Solicitor General urged on behalf of the respondent that the contention of the petitioner that the challan was “incomplete”, merely on account of the fact that it was incorporated in the charge-sheet that further investigation was going on, was specious. In the instant case, after three years of investigation a challan had been filed by the investigating agency, which challan, by no stretch of imagination, could be labelled as an “incomplete challan”, as was evident from a bare reading of the same. Mr. Malhotra further contended that the challan on all the aspectes CRL.M.C. 2525/2008 Page No. 5 of 19 investigated upon was in form and substance a complete challan, and the investigating agency could not be precluded from carrying on further investigation. In any case, it was not incumbent upon the investigating agency to have stated in the report that further investigation would be undertaken. It was only as a matter of courtesy to the Court that it was brought to the notice of the Court that further investigation was being carried on, though in view of the provisions of sub-section (8) of Section 173 it was neither incumbent upon the investigating agency nor from any angle necessary for the investigating agency to place on record the said fact.

11. The learned Additional Solicitor General, Mr. P.P. Malhotra also placed reliance, in the above context, upon the judgments of the Hon’ble Supreme Court in Ram Lal Narang vs. State (Delhi Administration) reported in (1979) 2 SCC 322, Upkar Singh vs. Ved Prakash and Others reported in (2004) 13 SCC 292, State of Andhra Pradesh vs. A.S. Peter reported in (2008) 2 SCC 383 and Rama Chaudhary vs. State of Bihar reported in JT 2009 (5) SC 14, to which I shall presently advert, but before I do so, a look at the relevant provisions of the Code in my view is necessary to examine the sustainability of the impugned summoning order passed by the learned Special Judge, CBI.

12. The term ‘police report’ has been defined in clause (r) of Section 2 of the Code as follows:-

CRL.M.C. 2525/2008 Page No. 6 of 19 “Police report means a report forwarded by a police officer to a Magistrate under sub-section (2) of Section 173.”

13. Sub-section (2) of Section 173 provides that as soon as investigation under Chapter XII of the Code is completed, the officer in-charge of the Police Station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government. Sub-section (2) thus envisages the dual process of the completion of the investigation and the forwarding of the police report to the Magistrate for taking cognizance of the offence.

14. A look at Sections 173(1) and 173(2)(i) is warranted at this juncture in view of the emphasis laid by Mr. Sidharth Luthra on the completion of investigation being the sine qua non for the forwarding of the report under Section 173, but before doing so, it is proposed to advert to the definition of term “investigation” as defined in Section 2(h) of the Code. The said definition reads:-

“h. ‘Investigation’ includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf.”

15. Section 173 which is contained in Chapter XII of the Code under the heading “Information to the police and their power to investigate” is as follows:-

CRL.M.C. 2525/2008 Page No. 7 of 19 “173. Report of police officer on completion of

investigation.- (1) Every investigation under this Chapter shall be completed without unnecessary delay.

(2) (i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating- (a) the names of the parties;

(b) the nature of the information;

(c) the names of the persons who appear to be

acquainted with the circumstances of the case;

(d) whether any offence appears to have been

committed and, if so, by whom;

(e) whether the accused has been arrested;

(f) whether he has been released on his bond and, if so, whether with or without sureties;

(g) whether he has been forwarded in custody under

section 170.

(ii) The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him, to the person, if any whom the information relating to the commission of the offence was first given. (3) ……………………………………………………………………. (4) ……………………………………………………………………. (5) ……………………………………………………………………. (6) ……………………………………………………………………. (7) ……………………………………………………………………. (8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2).”

16. It may be noticed at this juncture that there was no provision in the 1898 CRL.M.C. 2525/2008 Page No. 8 of 19 Code prescribing the procedure to be followed by the police, where, after the submission of the challan under Section 173(2) Cr.P.C. and after the Magistrate had taken cognizance of the same, fresh facts came to light which required further investigation, though, of course, there was no express provision prohibiting the police from launching upon further investigation upon fresh facts coming to light. The Law Commission in its 41st report decided to place matters beyond the pale of controversy by a statutorily affirming the right of the police to launch upon further investigation. Accordingly, in the 1973 Cr.P.C., a new provision by way of Section 173(8) was introduced as reproduced hereinabove, affirming the right of the police to make repeated investigations.

17. It is pertinent also to note at this juncture that the Hon’ble Supreme Court in the case of H.N. Rishbud vs. State of Delhi 1955 Crl. L.J. 526 held that further investigation was not ruled out merely because cognizance of the case had been taken by the Court, and that defective investigation coming to light during the course of a trial may be cured by such further investigation as the circumstances of the individual case may call for.

18. In the case of Ram Lal Narang (supra), while approving of its earlier decision in Rishbud’s case, the following pertinent observations were made by the Supreme Court:-

CRL.M.C. 2525/2008 Page No. 9 of 19 “21. ………………………………… Neither Section 173 nor Section 190 lead us to hold that the power of the police to further investigate was exhausted by the Magistrate taking cognizance of the offence. Practice, convenience and preponderance of authority, permitted repeated investigations on discovery of fresh facts. In our view, notwithstanding that a Magistrate had taken cognizance of the offence upon a police report submitted under Section 173 of the 1898 Code, the right of the police to further investigate was not exhausted and the police could exercise such right as often as necessary when fresh information came to light. Where the police desired to make a further investigation, the police could express their regard and respect for the court by seeking its formal permission to make further investigation.”

19. The aforesaid decision, in my view, unequivocally upholds the statutory right of the police to further investigate the matter after submission of the report under Section 173(2) and even where the Magistrate has already taken cognizance of the offence. The scheme of the Code thus is that the registration of the FIR in the prescribed form under Section 154 is to be followed by investigation by the police under Section 156 of the Code (which invests the police with the power to investigate into cognizable offences without the order of a Court). The investigation leads to the submission of a report to the Magistrate under sub-section (2) of Section 173 of the Code and, on submission thereof the Magistrate may take cognizance of the offence under Section 190(1)(b) and issue process to the accused under Section 204 of the Code. Thereafter the police on discovery of fresh information may submit a CRL.M.C. 2525/2008 Page No. 10 of 19 further report or reports regarding the further investigation in the form prescribed under Section 173(8) of the Code. In other words, the power of the police to conduct further investigation even after laying the final report has been clearly adumbrated and statutorily recognised in the new Code [See also Sri B.S.S. V.V.V. Maharaj vs. State of Uttar Pradesh, 1999 Crl. L.J. 3661 (SC)].

20. Looked at it from another angle, unless a report is forwarded under Section 173(2) to the Magistrate, sub-section (8) cannot be pressed into service for the purpose of further investigation and submission of further report or reports. When no report is forwarded as required by the Code, there is no question of “a further report or reports”.

21. A three-Judge Bench of the Supreme Court in Upkar Singh’s case (supra), after referring with approval to its earlier decision in State of Bihar vs. J.A.C. Saldanha (1980) 1 SCC 554 wherein it had considered the width of the scope and ambit of Section 173(8) of the Code, held: (SCC, page 299, para 21)

“…………..It is clear that even in regard to a complaint arising out of a complaint on further investigation if it was found that there was a larger conspiracy than the one referred to in the previous complaint, then a further investigation under the court culminating in another complaint is permissible.”

22. In the case of A.S. Peter (supra), the following important distinction CRL.M.C. 2525/2008 Page No. 11 of 19 between further investigation and re-investigation was succinctly laid down by the Supreme Court in paragraph 9 of its judgment, which is apposite:- “9. Indisputably, the law does not mandate taking of prior permission from the Magistrate for further

investigation. Carrying out of a further investigation even after filing of the charge-sheet is a statutory right of the police. A distinction also exists between further investigation and reinvestigation. Whereas reinvestigation without prior permission is necessarily forbidden, further investigation is not.”

23. In the aforesaid case, the Supreme Court unequivocally held that it was permissible for the investigating authority to carry out and direct further investigation in the matter even without the prior permission of the Magistrate, and the High Court of Andhra Pradesh had committed a manifest error in taking the view that the investigation in question was a fresh investigation and it was an imperative on the part of the investigating agency to have obtained the express permission of the Magistrate concerned.

24. More recently, in the case of Rama Chaudhary vs. State of Bihar JT 2009 (5) SC 14, the Hon’ble Supreme Court while rejecting the contention of the counsel for the appellant, Rama Chaudhary that as the trial had commenced and 21 witnesses had already been examined, the request of the prosecution for further investigation could not be allowed in relation to the very same offence and in relation to the very same accused, more so, as it would lead to the summoning of eight new witnesses which would prejudice the defence of the CRL.M.C. 2525/2008 Page No. 12 of 19 accused in the trial, and relying upon its earlier decisions in Hasanbhai Valibhai Qureshi vs. State of Gujarat and Others 2004 (5) SCC 347, held that there was no valid ground for interference and dismissed the appeal. In paragraphs 8 to 11, the legal position was summarised as follows:- “8. A mere reading of the above provision makes it clear that irrespective of report under sub-section (2) forwarded to the Magistrate, if the officer in-charge of the police station obtains further evidence, it is incumbent on his part to forward the same to the Magistrate with a further report with regard to such evidence in the form prescribed.

9. The above said provision also makes it clear that further investigation is permissible, however, reinvestigation is prohibited. The law does not mandate taking of prior permission from the Magistrate for further investigation. Carrying out a further investigation even after filing of the charge-sheet is a statutory right of the police. Reinvestigation without prior permission is prohibited. On the other hand, further investigation is permissible.

10. From a plain reading of sub-section (2) and sub- section (8) of Section 173, it is evident that even after submission of police report under sub-section (2) on completion of investigation, the police has a right to “further” investigation under sub-section (8) of Section 173 but not “fresh investigation” or “reinvestigation”. The meaning of “Further” is additional; more; or supplemental. “Further” investigation, therefore, is the continuation of the earlier investigation and not a fresh investigation or reinvestigation to be started ab initio wiping out the earlier investigation altogether. Sub-section (8) of Section 173 clearly envisages that on completion of further

investigation, the investigating agency has to forward to the Magistrate a “further” report and not fresh report

regarding the “further” evidence obtained during such investigation.

11. As observed in Hasanbhai Valibhai Qureshi v. State CRL.M.C. 2525/2008 Page No. 13 of 19 of Gujarat and Others, [JT 2004 (4) SC 305; 2004 (5) SCC 347], the prime consideration for further investigation is to arrive at the truth and do real and substantial justice. The hands of investigating agency for further investigation should not be tied down on the ground of mere delay. In other words, the mere fact that there may be further delay in concluding the trial should not stand in the way of further investigation if that would help the court in arriving at the truth and do real and substantial as well as effective justice.”

25. In view of the aforesaid law reiterated by the Supreme Court time and again, in my opinion, it is not possible for this Court to interfere with the summoning order passed by the learned Special Judge, CBI on the basis that an “incomplete challan” has been filed by the CBI. No basis or justification has been put forth to enable this Court to return the finding that the challan in the instant case is an “incomplete challan”. Merely because the investigating agency, in the ultimate paragraph of the challan, has reserved its right to submit a report with respect to further investigation in due course, cannot enable this Court to hold that an incomplete charge-sheet has been filed by the investigating agency. The learned senior counsel for the petitioner has not been able to demonstrate to this Court in what manner or for what reason the charge-sheet can be rejected as “incomplete”, and this Court after carefully examining the same is not inclined to hold that an incomplete charge-sheet has been filed by the respondent, nor, in view of the provisions of Section 173(8), in my view, is this Court empowered to shut out further investigation in the CRL.M.C. 2525/2008 Page No. 14 of 19 case, which has always been and will continue to be the terrain of the investigating agency. Indeed, it is not discernible as to how fresh inputs received during the pendency of the matter can be brushed aside and ignored by the investigating agency. As far as the present charge-sheet is concerned, therefore, I have no hesitation in opining it to be final and complete in every sense of the word.

26. The reliance placed by the learned senior counsel for the petitioner upon the judgment of this Court rendered in Hari Chand & Raj Pal (supra) and of a learned Single Judge of the Andhra Pradesh High Court in T.V. Sarma (supra), is also misplaced. On a careful reading of the decision rendered in Hari Chand & Raj Pal (supra), it becomes evident that the Court was dealing with the application for grant of bail to the petitioner on the ground that no police report as contemplated in sub-section (2) of Section 173 of the Criminal Procedure had been filed by the officer in-charge of the Police Station and that failure to complete the investigation within sixty days as required under sub- section (2) of Section 167 of the new Code entitled the petitioner to be released on bail. A learned Single Judge of this Court (Hon’ble Mr. Justice F.S. Gill as His Lordship then was) held that in the body of the incomplete challan filed in the Court, it had been clearly indicated that investigation was still continuing, i.e., it had not been completed. Rejecting the contention raised CRL.M.C. 2525/2008 Page No. 15 of 19 on behalf of the State that forwarding of the incomplete challan satisfied the requirement of sub-section (2) of Section 173 of the Code and, therefore, the petitioners could not derive any benefit of sub-section (2) of Section 167, the Court held that police report as defined in Section 2(r) of the Code can only be filed “as soon as the investigation is completed” and if it is not complete, no such report can be filed and consequently, no cognizance can be taken by the Magistrate nor sub-section (8) can be set in motion. It was further held that an incomplete report or incomplete challan, with whatever expression it may be called, does not meet the obligatory requirements of law, and to accept the same would tantamount to profaning the express provision engrafted in Section 167(2) of the Code.

27. Likewise, in the case of T.V. Sarma (supra), (which was relied upon in Hari Chand & Raj Pal), the Andhra Pradesh High Court taking note of the fact that only a “preliminary charge-sheet” had been filed and it had been specifically stated therein that the investigation had not yet been completed, held that the same could not be treated as a “police report” within the meaning of sub-section (2) of Section 173 Cr.P.C. and since no report under sub-section (2) had been forwarded, sub-section (8) did not come into play at all. There was also no question of the Magistrate taking cognizance of the case and for the aforesaid reasons the Magistrate was justified in releasing the accused on CRL.M.C. 2525/2008 Page No. 16 of 19 bail after the lapse of the sixty days period of detention under Section 167 sub- section (2), Criminal Procedure Code.

28. Both the aforesaid decisions, in my view, were dealing with the beneficial provision in proviso (a) of sub-section (2) of Section 167 of the New Code, designed to cure the mischief of indefinitely prolonging the investigation unmindful of its effect on the personal liberty of the citizen, and have no application to the facts of the present case where a detailed challan has been filed, after investigations spanning a period of three years, and no haste has been shown by the prosecution to file a challan with a view to short-circuit the right of the accused to bail. At all events, the instant case is not one in which there are poised on opposite sides, the conflicting interests of the right of the investigators to investigate and the right of the accused to personal liberty, in the event of the investigators proceeding with the investigation at a tardy pace or adopting a stance of procrastination.

29. Before parting with the case, I also deem it expedient to record the contention of the learned counsel for the petitioner that the petitioner having filed an application seeking “Release of un-relied upon documents before the Special Judge, CBI” and the Special Judge having rejected the same by his order dated 18.09.2008, the CBI is estopped from further investigating the matter on the basis of the aforesaid “un-relied upon documents”. This CRL.M.C. 2525/2008 Page No. 17 of 19 contention is being noted for the purpose of being rejected. The impugned order taking cognizance of the case was passed on 21st July, 2008 while the application of the petitioner for return of the documents was rejected on 18th September, 2008 and cannot, therefore, form the basis of assailing the earlier order passed on 21st July, 2008. In case the petitioner was aggrieved by the order dated 18th September, 2008, it was open to him to assail the same before the higher court, if warranted, but it is certainly not open to him to circuitously challenge the order dated 21st July, 2008, which was passed prior in point of time.

30. Then again, the ultimate test is: In case the documents which were not relied upon in the challan subsequently become relevant on account of further evidence garnered/received by the investigating agency, can it be said that the said documents cannot form the basis of a supplementary or further challan to be filed by the respondent? The answer must, in my view, be in the negative. Further investigation may unravel further facts about the existential documents (not relied upon by the prosecution so far) or may throw up further documents bearing a linkage to the earlier documents, already relied upon. The shutting out of such evidence may present a distorted or lopsided or blurred picture of the case, and may lead to total travesty of justice even in a case where the true and focussed picture with sharply etched lines can easily be placed before the CRL.M.C. 2525/2008 Page No. 18 of 19 Court to enable the Court to do complete justice to the parties. In such a situation, can any estoppel be put on the investigator’s right to investigate further, and the Court’s right to know the unmitigated truth? The answer must be a clear ‘No’.

31. In the light of the aforesaid, the prayer of the petitioner for quashing and setting aside of the order dated July 21, 2008 as well as the further prayer of the petitioner to quash and set aside the report dated 27 th / 28th March, 2008 filed by the respondent before the learned Special Judge are declined. The interim orders passed by this Court on 19.08.2008 stand vacated. CRL.M.C. 2525/2008 and CRL. M.A. 9326/2008 stand disposed of accordingly.

REVA KHETRAPAL, J.

MAY 06, 2009

km

CRL.M.C. 2525/2008 Page No. 19 of 19

Categories: further investigation

Further investigation can be ordered if there is additional information

http://indiankanoon.org/doc/799818/

S.N. Dube vs N.B. Bhoir & Ors on 12 January, 2000
Author: Q Nanavatt.
Bench: G.T.Nanavati, S.P.Kurdukar

PETITIONER:

S.N. DUBE

Vs.

RESPONDENT:

N.B. BHOIR & ORS.

DATE OF JUDGMENT: 12/01/2000

BENCH:

G.T.Nanavati, S.P.Kurdukar

JUDGMENT:

Q.T. NANAVATT. J.

1. One Suresh Dube was shot dead on a platform of Nalasopara (a suburb of Bombay) Railway Station in broad day light. Many persons saw it and many knew who were the murderers. Because of the terror of the gangs Involved none except two persons, one accompanying the deceased and the other who was at that time polishing shoes of that person, have come forward to give evidence against the murderers. One Mukesh Ratilal Shah (P.W.13), who was injured by one of the bullets fired at that time, has thought it fit not to ,r)arr)e the person who had fired the shot. initial dishonest investigation by the police, on account of close nexus between those gangs and some of the police officers of the area where the said gangs were operating, not only delayed the prosecution of the real culprits but also weakened it considerably. On these allegations 17 ^ persons (thirteen belonging to the two gangs and four police officers) were tried in the Court of the Judge, Designated Court, Pune in Terrorist Sessions Case No. 32 of 1993 and Terrorist ri Sessions Case No. I of 1996 (amalgemated with original TSC No. 32/1993), for the murder of Suresh and for commission of terrorist acts and other offences .The trial Court did not consider it safe to convict them on the basis of the prosecution evidence and, therefore, acquitted them of aH the charges. Shyam Sunder Dube, brother of Suresh Dube, feeling aggrieved by the acquittal has filed Criminal Appeal No. 678 of 1997. The State of Maharashtra has also filed Criminal Appeal Nos. 709-710 of 1997.

2. The prosecution case is as follows:

(a) Nalasopara is a suburb of the City of Bombay. Formerly it was a small and a quite place but with the expansion of the city of Bombay It also started growing. Development of lands and construction of buildings became a lucrative business. That also led to illegal activity of land grabbing, compulsory s^les and forcible taking of possession of lands. Those Illegal activities were carried on by the gangs of Pendhad, Suresh Dube and Bhal Thakur since 1980. In 1984 ManikPatil’s gang also started operating in Nalasopara area. Bhai Thakur’s gang was operating from Virar, a nearby suburb and the last station for the suburban trains running between Churchgate (Mumbai) and Virar. Often there were conflicts and fights between these gangs and because of that one Ram Naresh Chourasiya-was murdered in 1984 and Bharat Pendhari was murdered in 1989. Dube brothers having made money stopped that illegal activity one or two years prior to the date of the incident, but continued to carry on the business of land development and construction of buildings. One of the Dube brothers. Dr. 0m Prakash Dube (P.W.I) had opened a Nursing Home on the first floor of their building called ‘Dube Estates’. Naresh (P.W.3) was doing business of building materials. Another brother Jai Prakash (P.W.4) was looking after their Pandava Hotel. Shyam Sunder Dube and Suresh Dube continued to look after land development and building activity. All the brothers were residing on the second floor of ‘Dube Estates’.

(b) Dube brothers had agreed to purchase one land bearing Survey No. 110 ofViHage Achole and some other lands of nearby places. Bhai Thakur wanted those lands and had forcibly taken possession of them. Bhai Thakur wanted Dube brothers to transfer Survey No. 110 ofAchole to him and for that reason had called Suresh Dube at his office In Virar a few days prior to 9.10.1989. As the relations between Bhai Thakur’s gang and Dube brothers were Inimical Suresh Dube was not allowed to go alone to Bhai Thakur’s office. Dr. 0m Prakash had accompanied him. In his office Bhai Thakur, his brother Hitendra Thakur and other associates were present. They had told Suresh Dube to part with that land and also to pay ‘haftas” to Bhai Thakur If he and his brothers wanted to remain in Nalasopara and carry on the land development and building construction activity. Suresh Dube was even threatened and warned that if he did not comply with that demand and took any other action, then the members of his family shall have to perform ‘aarti’ of his photo within a short time. Because of this threat Suresh Dube was not moving out of his house since then. As there was no response from Suresh Dube Bhai Thakur and his associates decided to finish him. On 8.10.1989 a warning was given to him on telephone that If he did not transfer that land to Bhal Thakur he would be finished. On that day at night one Srikant Pandey, who was working with Bhai Thakur and had some contact with Suresh, went to the house of Suresh and tried to convince him that If he wanted to remain alive It was advisable for him to give up the land and go away to his native place. On account of this serious threat Surash and his brothers had decided that Suresh should leave Nalasopara and stay at his native place till there was danger to his life.

(c) Since a few days prior to 9.10.1989 Amarnath Tripathi (P.W.48), brother-in-law of Suresh, had come to Nalasopara and was staying with them. He had to go to Vilay Parle (another suburb of Bombay) to^see a boy in connection with marriage of his brother’s daughter. Suresh also wanted to go in that direction for purchasing a ticket for going to his native place Gorakhpur, in Uttar Pradesh. Both of them, therefore, left their house for going to Nalasopara Railway Station at about 10.15 A.M. They reached the station within about two minutes time. There were many passengers on the platform. As the train by which they wanted to go towards Churchgate (Mumbal) side was running late Suresh purchased a newspaper from a stall on the platform and started reading It. Amarnath Tripathi went to a shoe polish wala, who was siting near that stall, for getting his shoes poHshed. OB (d) The gang of Mamk Patll had accepted supermacy of the gang of Bhai Thakur and both the gangs were cooperating with each other i’n committing terrorist acts and In carrying on the illegal activities of land grabbing and forcible purchasing of lands. In September 1989, it was decided between the two gangs that Bhai Thakur would liquidate the person whom the gang of Manik Patil wanted to eliminate and that Manik Patil’s gang would do away with Suresh Dube. Bhai Thakur’s gang had already done their job but Manik Patii’s gang was not able to finish Suresh. Bhai Thakur was, therefore, very angry with Manik Patil’s gang and had sent messages that the work should be finished as early as possible. The members of Manik PatiTs gang were, therefore, keeping a watch over the house of Suresh Oube. On 9.10.1989 one of the members of the gang saw Suresh going towards the railway station and after locating his position immediately rushed to the nearby hotel belonging to Manik Patil and Informed other members of the gang including Narendra Bhoir (A-1) about the presence of Suresh on platform No. 2. So Narendra Bhoir and some other members of the gang who were present there rushed to the. platform. Narendra was armed with a pistol. Other members of the gang were also variously armed. Narendra found Suresh standing near the newspaper stall and then fired three shots from a close range. Suresh got injured and fell down on the platform. Narendra went near him and fired one more shot. One of the shots fired by Narendra also caused an injury to Mukesh (P.W.13). After thus killing Suresh ail those assailants ran away from that place.

(e) Someone known to Dube brothers immediately ran to their house and informed Shyam Sunder that Suresh was shot dead on the railway platform. One of the two persons who had als(9 accompanied Amarnath to the railway station went back and informed Naresh (P.W.3) about the incident. Shyam Sunder along with his brothers rushed to the platform and brought bacic his brother to their house with the help of others. Dr. OfTiv Prakash, Dr. Ajmera and Dr.Bindwani, who were present in the Nursing Home found Suresh dead.

(f) Within a very short time PI Kukdol^ar, who was in-charge of Vasai Police Station, went to the house of Dube brothers, and first talked to Dr. Dube (P.W.I) and tried to persuade him not to Involve Bhai Thakur and then threatened him by stating that if he involved Bhai Thakur, then the consequences would be serious for him. Thereafter, PSI Padekar, attached to Pa’ghar Railway Police Station had gone to the house of Dube brothers and made enquiries about the incident. Because of the threat given by PI Kukdoikar and also because they knew that the police was protecting and helping the gang of Bhai Thakur they did not lodge any complaint. A complaint (Ext. 615) was prOBared by PSI Padekar in present of PI Kukdoikar on the basis of what was stated by Shyam Sunder (P.W.2) and his signature was taken thereon. Police Inspectors Kukdoikar and Nimbalkar often used to visit the house of Dube brothers and threaten them not to disclose the name of Bhai Thakur as he was a strong man and whoever complained against him was killed by him. Investigation was not made honestly. Some of the em’pties found from thel platform were substituted or tampered with. ^ At the instance 6f Police Inspectors Kurdolkar and Nfrnbalkar and Bhai Thakur, Patric (A-4) and Anant Shankar Patil (A-11) were arrested as the persons responsible for the murder of Suresh. A revolver was recovered at the instance of A- 4 as the weapon with which Suresh was killed. Those two accused were then charge-sheeted and put up for trial before the Sessions Court, Thane in Sessions Case No. 88/91. Hearing of the said case could not proceed further as both the accused were shownlabsconc^ng after they were released on ball and no effort was made by the police for getting warrants issued for securing their presence before the court.

(g) On February 19, 1992 the police set up at the Vasai police station and Palghar railway police station, within whose jurisdiction those gangs were operating, had changed. DIG Suradkar (P.W.75) of the Railways, during his visit to Palghar railway police station, had an occasion to look into the investigation papers relating to the murder of Suresh. He became suspicious about honesty of the investigation and identity of the real assailants. He, therefore, sent for Shyam Sunder Dube to know the truth. In view of the attitude of the police till then Shyam Sunder did not personally go. but sent his mother Bhagwati (P.W.5) and Dr. Ritu, wife of Dr.Om Prakash Dube. They complained to him about the dishonest investigation made by PSI Padekar and PI Berge and the role played by Pis Kukdolkar and Nimbalkar. On being assured by Suradkar that proper investigation will be made, a written complaint (Ext. 237) was then given by Dube brothers on 18.5.1992. Suradkar forwarded it to DSP Deshmukh for further enquiry. The enquiries made by him and PI Shinde revealed that the gangs of Bhai Thakur and Manik Patil were committing terrorist acts in Nalasopara and surrounding areas, they had created a reign of terror and that Suresh was Killed by a person belonging to the gang of Manik Patil at the instance of Bhai Thakur. Deshmukh, therefore, submitted a report under Section 173(8) of the Code of Criminal Procedure to the Sessions Court at Thane and sought permission for re-investigation of the case. Permission was granted. Further investigation made by Mr. Deshkukh and his officers revealed existence of the gangs of Bhai Thakur, Bharat Pendhari, Suresh Dube and Manik Patil. It also revealed that Bhai Thakur’s brothers Hitendra Thakur (A-9) and Deepak Thakur, Prashant Rajaram Tandel (A-8), Istiyak Mukhtyar Khan (A-13) and some others were members of the Bhai Thakur’s gang. It also revealed that terrorist acts were committed by the gangs of Bhai Thakur and Manik Patil and that those two gangs were responsible for the murder of Suresh Dube. During the Investigation by Deshmukh A-1 discovered a pistol from which he had fired shots at Suresh. A-1 to A-8 and A-11 also made confessions about the terrorist acts committed by the two gangs, the motive for committing murder of Suresh Dube, the manner In which it was committed and how accused Nos. 14 to 17 had helped Bhai Thakur In concealing rea’ offenders.

3. Pi Dssai (PW 90), who took over the investigation after superannuation of Deshmukh on 30.6.1993, submitted a charge-sheet to the Designated Court on 27.8.1993 against A-l to A-ll and deceased accused Narayan Gauda. Thereafter, supplementary charge-sheets were filed against A-12 to A-17 on different dates. The Designated Court, however, took cognizance against A-l to A13 only as no sanction to prosecute A-14 to A-17 was obtained under the TADA Act. Their case was, therefore, forwarded to the Sessions Court at Thane. Later on sanction was obtained to prosecute those police officers also under the TADA Act and their case was amalgamated with the original T.S.C. No. 32/1993 and the charge was suitably amended.

4. The charge against A-l to A-13 was that between January 1984 and December 1989, they had entered into continued crimirval conspiracy to commit terrorist acts by use and/or show of criminal force, fire arms and other lethal weapons to extort mone-y, to illegally grab lands belonging to others and to create terror amongst the people to achieve the objects of their conspiracy. It was also alleged that in pursuance of the said objects they had committed various illegal and terrorist acts, the last or which was the murder of Suresh Dube and causing hurt to Mukesh Shah. A-l was speaflcaHy charged for the murder of Suresh Dube and causing injuries to Mukesh Shah. Accused Nos. 1-5, II, 12, 13, deceased accused Narayan and absconding accused Sanjay were also charged for having committed the murder of Suresh in prosecution of the object of their unlawful assembly. It was alleged against A-14 to A-17 that as a part of the criminal conspiracy they had caused evidence of commission of those offences to disappear and by that dishonest investigation they had tried to screen the real offender^ from legal punishment. A-l to A-13 were slso charged for commission of offences punishable under Sections 120B, 201, 217, 218, 302 read with 149, 307 read with 149 of Indian Penal Code, Sections 3, 3(3) and 3(4) of TADA Act an<i Section 25(l)(a) of the Arms Act. A-14 to A-17 were charged under Sections 201, 217, 218 read with Section 120B of the Indian Penal Code. They were also charged under Sections 3(3) and 3(4) of the TADA Act read with Section 120B of the Indian Penal Code.

5. All the accused pleaded not guilty to the charge and their defence was of total denial. A-14 had raised the defence that on the day of the incident he had gone to Bareilley in connection with investigation of a theft case and had returned to Palghar on 12.10.1989. A-15 had also raised the defence that he was at the Vasai police station till 11.00 A.M. on the date of the incident and had reached the place of offence after about 11.30 A.M. He had merely taken steps for keeping ‘bandobasf and was not involved with the investigation of the case.

6. The prosecution, in order to prove its case regarding existence of the two gangs of Bhai Thakur and Manik Patil and the- terrorist acts committed by them and the help rendered to them by the police/had oxarnined OrnPrakash (P.W.I), Shyam Sunder (P.W.2), Naresh (P.W.3), Pushpa Pondhari (P.W.19), Sitaram Yadan (P.W.25), Balaram (P.W.34),Kanhiya Lal Misra (P.W.35), Jafar (P.W.40), Waman (P.W.41), Sakharam (P.W.42), Jagganath (P.W.45), Mohammad (P.W.52), Subhash (P.W.67), Rubab (P.W.68), Madhukar (P.W.69), Rarnkishan (P.W.70), Vasant (P.W.90), Naaz Asif Patel (P.W.97) and the police officers connected with the subsequent investigation as witnesses. The prosecution had also heavily relied upon the confessions state^ to have been made by A-1 to A-8 and A-11. In order to prove the murder of Suresh Dube the prosecution had mainly relied^ uponOOhe evidence of the two eye witnesses Amsmath Tripathi (P.W.48) and 0m Prakash Brahamania (P.W.49). Evidence was also led to prove that the investigation made by the police prior to September 1992 was not honest. Evidence regarding discovery of pistol by A-1 and the evidence of a Ballistic Expert and medical officers and other formal witnesses was also led.

7. The trial Court found many faults with the confessions and also held them inadmissible in evidence. It also held that they were not voluqtarily made. The trial Court disbelieved the witnesses examined to prove the terrorist acts on the ground that their evidence was too general and vague and they were not independent anc<HR>responsible members of the locality. The evidence of two eye witnesses was dis-belleved on the ground that there were material improvements and contradictions in their evidence ^nd their version was also not believable. Identification of the accused in the court by these two eye witnesses was not believed because it was after a long time and no previous test identification parade was held. For all these reasons it further held that the prosecution case against A- 1 to A-13 was not proved. As regards A-14 toA-17 the trial Court held that the sanction given for their prosecution under Section 3(1) o* the TADA Act was vitiated on account of non- application of mind. It also held that the reinvestigation was done with an oblique motive as most of the terrorist activities fell outside the jurisdiction of the railway police and yet they were investigated by them and the regular police having jurisdiction over the areas was not associated with it. Thus the case against A-14 to A-17 was also held not proved.

8. Whether the eartiar investigation was dishonest or the subsequent re-investigation by Deshmukh and his officers was done with some oblique motive wilt have to be considered first as acceptability of the evidence of the witnesses and the confessions would depend upon the answer to that question. If the earlier Investigation was honest as held by the learned trial Judge, then the contradictions and Improvements found in the evidence of the two eye witnesses will assume importance. But if the earlier investigation is found to be not honest, then the major ground on which the evidence of the eye witnesses has been disbelieved will disappear. If we confirm the finding of the learned trial Judge that the re-investigation was made with some oblique motive then that would certainly affect evidentiary value of the confessions. The trial Court held the investigation by Mr. Deshmukh and his officers motivated for the following reasons: (1) in the application (Ext. 237) made for re-investigation it was not stated that the earlier investigation was faulty and that A-4 and A-11 were wrongly shown as murderers of Suresh Dube.

(2) there was no material before Deshmukh on the baste of which he could have stated that the earlier investigation was faulty and for that reason no good ground was mentioned in the application for re-investigation. (3) there was no reason for Deshmukh to take possession of the Mudemmal articles on the very day on which application for re-investigation was made as there was no material before him to show that an unconnocted weapon was seized by the earUer investigating officer. (4) after obtaining the sealed packet of Muddamal empties and bullets from the court for getting them examined by a ballistic expert the Court, he first opened it and then again resealed it for no .reason except for tampering with the Mudammal articles, particularly the three bullets recovered from the body of Suresh Dube. (5) even though there was no material before Dehmukh on the basis of which he could have lawfully invoked the provisions ofTADA on 28.9.1992 very probably he did so with a view to defeat the anticipatory bail application filed by some of the accused. (6) even though in the first FIR Shyam Sunder Dube (P.W.2) had stated that he was suspecting none for the murder of his brother, the entire theory got changed during the subsequent re-investigation.

9. Suradakar (P.W.75) who took over as DIG, Railways, Bombay in August 1991 had been to Palghar Railway Police Station in February 1992. While examining case papers relating to the murder of Suresh Dube he felt some doubt about the investigation. Therefore, he had directed his subordinate officers to send a message to Shyam Sunder Dube to meet him. Pursuant thereto Bhagwati (P.W.5) and Dr. Rijuta Dube (P.W.37) had met him within about 8 to 10 days. Suradkar has deposed that they had orally complained to him about the honesty of the police officers who had investigated the case. On his assurance that he would look Into the matter and take appropriate action they again met him after about 15 days and gave further details regarding the murder of Suresh. He had, therefore, advised -them to give a complaint in writing and pursuant thereto a complaint (^xt. 237) dated 18.5.1992 was given to him. This part of his evidence has almost remained unchallenged in cross- examination. Only suggestion made to the witness was that after Dubes had met him-he got the investigation of the case re- opened in ordar to help Dube brothers. No material has been brought on record to infer that Suradakar was m any manner interested in Dubes or had any other reason to help Dubes by falsely involving Bhai ThakLir or Manik Pat’l or their men. The doubt feit by him regarding honesty of the inve-stfgation was justified because even though five empties were recovered from the place of offence a revolver was seized as the weapon of offence A poUce officer even With little experience would have realised that the murder was committed not by using a revolver but with a pistol. The learned trial Judge was, therefore, wrong in holding that there was no material before Suradakar for entertaining any doubt and re-opening the investigation and that he had done so with some oblique motive.

10. .Thetricri Court was also not right in holding that Suradakar, got re-investigation done with some oblique motive because in the complaint (Ext.237) it was not specifically stated that the investigation made by the police officers till then was not honest. The complaint does indicate that the Investigation made till then was not honest. It should have been appreciated that Dube brothers, in the position in which they were placed at that time, could not have specifically alleged that the previous investigation was dis-honest. So also from the fact that in the application made to the Court for permission to re-investigate it was not statp^ that the previous investigation was not honest, no inference of oblique motive could have been legitimately inferred. The application din refer to the complaint made by Dube brothers. Without ^”::h<ar investigation no charqe of dis- honesty could have been levelled against the police officers associated with earlier investigation at that stage. Therefore, Deshmukh could not have mentioned In the application that permission to re-investigate was sought as the previous investigation was not honest.

II. The adverse Inference drawn by the learned trial Judge from the circumstance that Deshmukhhad takon back Mudemmal articles from the Court on the same day on which permission to reinvestigate was granted and that he had opened the sedsd packet containing bullets and empties and agalrv sealed them, is wholly unjustified. For ascertaining from which type of weapon – pistol or revolver – the bullets which were found from the body of Suresh Dube were fired, It was really necessary for Deshmukh to obtain possession of those bu^ets and also the empties and get an opinion of a ballistfc expert, particularly when no clear opinion on that point was given by him in his earner report. As the said Mudemmal artides were lying in the Court in a pealed packet he had to obtain them from the Court and without opening the packet he could not have given a receipt as to which articles were taken possession of by him. It was necessary for him to open that packet and verify the contents. Al? those steps were regular and necessary and it is difficult to appreciate how the learned trial Judge could infer from them that ail that was done by Deshmukh with a view to tamper with those Muddemal articles and particularly the three. bullets ^ound from the body ofSuresh.

12 The trial Court also grievously erred in holding that the TADA Act was wrongly invoked. The complaint made by Dube brothers and inquiries made by Deshmukh and his officers disclosed some of the illegal activities committed by the gangs of Bhai Thakur and Manik Patil and the terror created by them in Nalasopara and surrounding areas. Deshmukh was handed over the complaint of Dube brothers for further enquiry on 18.5.1992. On 31.7.1992 he had interrogated Mukesh Shah and on 18.8.1992 he had interrogated Amarnath Tripathi. He had also made some discreet enquiries through his subordinates and gathered some information regarding involvement of accused other than A4 and All. .On 22.9.1992 he had interrogated accused Dnyaneshwar Pati) (A-3). It was thereafter that he had submitted a report to the Sessions Court, Thane under Section 173(8) of the Code of Criminal Procedure for further investigation. Afterobtaining that permission he was able to obtain custody of OiHp Waghchoure (A-7) and interrogate him. On 25.9.1992 he, had recorded statements of MiraDube, Bhagwati Dube and Jayprakash Dube. It was on .the basis of this material that he was satisfied that the accused had committed offences punishable under the TADA Act. Disposing aii this material he had made a report to the Superintendent of Pouce,- Railways on 28.9.1992 for invoking the provisions of the TADA Act. It Is, therefore, not correct to say that without any justifiable reason provisions of TADA were invoked by Deshmukh and that he had done so ^ for frustrating the bail applications which were to come up for hearing on 13.9.1992.

13. The last reason given by the trial Court is also not sound. It wrongly assume.d that the first complaint was correct and tha FIR was recorded at the time stated therein. If the evidence of Shridhar Thakur (P.W.30), Rajendra Panjwani (P.W.79) and Gosa’Mar (p.w.66} had been analysed more carefully it would have become apparent that the FIR could not have been recorded at Paighar railway station at 12.30 p.m. as mentioned Iff the FIR. The teamed trial Judge also faiied So appreciate that some days prior to 9.10.1989 Suresh was called by Bhai Thakur and was threatened that If he did not part with the lands wanted by Bhai Thakur, then his family members shail have to perform Aarti of his photograp’h-and on 8.10.1989 one Srikant Pandey, who was a man of Bhai Thakur, had met Suresh and advised him to leave Nrdasopara if he wanted to remain alive. Because of this threat a decision was taken by Dube brothers that Suresh should goto his native place and remain there till the danger to his life continues. Pursuant to that decis’on Suresh had left his house wIthAmarnath Tripathi on 9.10.1989 for going to Mumbai for purchasing a railway ticket for Gorakhpur. This conduct of Suresh corroborated the evidence of the prosecution witnesses on that point. It Is, therefore, difficult to appreciate how in view of this evidence the (earned Judge could pe”suade himself to hold that the first complaint was correct and during the re-investigation the whole version was charged deliberately, ‘he r.tatement in the complaint that ths complainant did not suspect anyone as the more careful whUe appreciating the relevant evidence.

14. As regards the earHar investigation by PSI Padekar and PI Berge, It was contended by the learned counset for the appellants that it was not honest, it was submitted that PI Kukdotkar, PI Nimbalkar ^n^ the police^ officers attached to the Vasai and Virar police stations and even higher officers were supporting and protecting Bhai Thakur, Manik Patil and their men by helping them in tampering with the evidence or by “ot taking action against them. There is sufficient evidence on record to hold that the gangs of Bhai Thakur and Manik PatU were operating in Vasai and Nalaropara areas since 1980 and 1984 respectively. There is also evidence to show that in order to achieve their objects or extorting money and grabbing land they used to indulge in violence and other criminal activities. Whether those two gangs were committing terrorist acts or not is a separate point and we shall deal with it later. For the present we are examining the evidence to find out whether investigation in respect of murder of. Suresh Dube was honestly done. The evidence of the family members of Suresh Dube is consistent on the point that PI Kukdolar and PI Nimbalkar had pressurised thern not to mention the name of Bhai Thakur or his men as the murderers of Suresh and had even threatened therr. that if they did so they -would have to suffer serious consequences. P.W.I, Dr. 0m PraKssh has deposed that within about 10-15 minutes after Suresh was brouight home and examined by the doctors, PI Kukdoikar had come to thss’r house and toid that as he had not personaUy seen who had committed ‘ the murder he should not name Bhai Thakur as a suspect. PI Kukdoikar had further toid them that even if Bhai Thakur was named as the murderer nothing would happen to him and on the contrary he and all his brothers wouid have to d’e. PI KLikdoiksr had theroafter gone awayand had returned wit.hPSI Padekar and had remained wfth him when the complaint was written down by PSI Padekarand Ccn.stable Sridhar Thakur (P.W.80). Dr. 0m prakash has 3^0 deposed, that .PI Kukdolkar used to come. to their house even thereafter and on. some occasions he had come with PI Nimbalkar and that both of them had tried to impress upon him and his family-members that Bhai Thakur being a strong mar) end whoever filed a complaint against him was killed and that it was enough .that .one of the Dube brothers was ‘kiiied. P.W.2, Shyam Sunder has also stated that within about 10 minutes after Suresh was declared dead PI Kukdolkar had come to thefr house and had a tafk with his brother Dr. 0m Prakash. He has further stated that after talking with his brother PI Kukefolkar had told him and other members of the family that they should not name Bhai Thakur as the murderer of Suresh. PI Kukdolkar had specifically told him that he was the eldest member of the family ahd should understand the consequences otherwise all the brothers would meet the same fate as that of Suresh. He has further stated that PI Kukdolar had also told them that whatever property BhaiThakur was demanding should be handed over to him and that they should leave Nalasopara and go away to their native place. Us has aiso stated that PI Kukdolkar had again come back with P51 Padekarand told them that they should cooperate with him and that they should act according to what he had told them. P.W.3 Naresh Dube, P.W.4 Jalprakash, P.W.5 Bhagwati and P.W.6 Meera Dube have also supported the evidence of Dr. 0m Prakash and Shyam Sunder. All this evidence has been disbelived by the trial Court on the ground the Dubes had not complained about the conduct of PI Kukdolkar and PI Nimbaikar to Mr. Zarekar, who was then working as SDPO Vasai nor to any other higher officer. It is not qu’te cor”ect to say that these witnesses had not complained obcL-t the conduct of PI Kukdofkar and P! N.’mbalkar to anyone. He had complained to Pi Rathod who used to go to them for investigation. All these witnesses have further stated that it was because of this attitude of the police officers connected with the investigation or interrogation that they had not complamed to higher police officers or taken any other action. The-learned counsel for the appellants submitted that the learned trial Court was not right in brushing aside this evidence and it shcuid have appreciated that there was no particular reason for the members of Dube family to make false allegations against the four police officers (A-14 to A-17) and PSI Padekar. It was submitted that the learned trial judge failed to appreciate that for some years Suresh Dube was also involved in similar illegal activities and was, therefore, likely to know about the relations of police with the gangs of BhaiThakurand^anikPatil. .

15. . The learned counset for the appellants also submitted that the time of recording the FIR was not correctly mentionee and that is a circumstance Indicating dishonesty of the previous investigation. Undisputedly murder of Suresh took place on the Nalasopiars railway platform at about 10.30 A.M. P.W.80, Sridhar Thakur who was working as a writer constable under PI Berge at the Peighar railway police station,

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has stated PI Berge was absent on 9.10.1989 ard PSi Padekar was in-charge of the poUce station. On receive information regarding murder of Suresh he had accompanied ‘PSI Padekar to platform No. 2 of Naiasopara railway station and thereafter to the residence of Dube brothers. PSI Padekar had questioned Shyam Sunder and the reply given by him was written down by him and that writing was taken as the complaint of Shyam Sunder.’-‘ The said complaint was then sent to the Palghar railway police station for registration. ‘In his cross-examination however he denied this version and stated that on 9.10.1989 he was cailed by PSI- Padekar at Natasopara bysending a wireless message. It is proved that in his police ‘statement dated 15.5.1993 he had stated that after receiving the wireless message he had gon<3 to Naiasopara and that he had reached there at 2.00 P.M. The murder had taken place at Naiasopara railway platform at abut 10.30 A.M. PaSghar raltway police station is 6t a considerable distance and as disclosed by the evidence of police constable ‘RaJendra Panjawant (P.W.79), who was’also attached toPalghar raiiway-poHCe’statlon, that the first train available ek Palghar for going towards Mumbal si^e after 10.15 A.M. was at 12.30 P.M. It is, therefore, quite clear that writer constable Sridhar Thakur could not have taken down the complaint at Naiasopara at 10.40 A.M. Poiice.constabte Rajendra Panjwani has also stated that the message regarding murder of Suresh was received at Paighar railway police station sometirna between 11.00 and 11.15 A.M. and that he wasaiso directed to leave for Naiasopara. He caught the next available tram at 12.30 P.M., got down at Virar and then caught the suburban train for Naiasopara which took him there at about 3.00 P.M. P.W.66, Gosalkar was a police constable on duty at Palghar railway police.station on 9/10.1989. He has stated that while he was on duty at gate No. 38 situated on the western side oftha railway platform he saw s^me passengers running across the railway ime. On enquiry he.wastold thatfirmghad taken place on the railway-platform and so. he rushed to that place and found one person iytng. ;m an: injured- condition.-He then went to the station master’s room to. send a telephon call to Vasai railway station master for sending more police force. That was between 10.45 and 11.00 A.M. -Thereafter heyvent to the house ofDube .. brothers and after about 20 minutes PI Kukdolkar had come there. From this evidence also it becomes quite clear that the complaint could; not have been recorded by Sridhar Thakur at 10.40 A.M, nor..could it have reached Palg^ar railway police -station by 12.30 P.M. as deposed by P.W.72, Hanumant Jadhav. In all probability the first information was recorded atPalghar railway police station much later and after PSI Padtekarhad gone back to Palghar. No time was rrtentlohed In the register. Copy of the FIR was not sent to the Magistrate either on that day or on the next day. It had reached the Magistrate on 12.10.1989. This delay does create a suspicion regarding influence of the two gangs oyer the police. Another circumstance and a stronger one indicating that the first Investigation was not honest Is the attempt made by the previous investigating officers to connect revolver article (No. 47) with the crime. It is not in dispute and also stands proved by the spot panchnama and the entry made in the, case diary (Ext. 754) that five empties were recovered from the scene of offence. If shots had been fired from a revolver then the empties would have remained inside the chamber of the revolver and would not have fallen out on the platform. Presence of five empties on the platform clearly indicated that the weapon used for firing shots was a pistol. Yet a revolver (Article 47) was seized and shown as the weapon of offence. Obviously that was done with the object of helping the murderers as no Court could have convicted them on the basis of such evidence. Very probably two of the five empties seized from the railway platform were substituted. That becomes apparent on comparison of the description given in the Panchnama with the description mentioned in the case? di’ary.

16. Another circumstance which creates a ^cubt regarding honesty of the previous investigation is the making of a false statement in the application for taking A-4 on remand. The police had already recovered the revolver on 20.10.1989 sometime between 5.30 and 6.30 A.M. and yet in the application made to the Court at: about 12.30 P.M. on that day it was stated that the weapon of offence was yet to be recovered. One more circumstance having a bearing on the connaction of the previous investigating officers with accused A-1 to A-13 is absence of any serious attempt by the police till 1992 to secure presence of the accused before the Court and see that the trial proceeded against them. Even though A-4 and A-11 were released on bail and were not attending the court and summons were not served upon them, yet no attempt was made by the police to get any warra-nt for their arrest issued by the court. The proceedings of the Court discloses that the case was required to be adjourned from time to time on the ground that the summons could not be served^pon them.

17. in our opinion these circumstances do create a doubt regarding honesty of the first investigation. We are also of the opinion that the subsequent Investigation made by the police under the direction of Suradakar after September 1992 was not done with any oblique motive.

18. The prosecution had led evidence of P.W.I (Dr. 0m Pra^ash), P.W.2 (Shyam Sunder), P.W.3 (Naresh Dube), P.W.4 (Jaiprakash), P.W.5 (Bhagwati) and P.W.6( Meera Dube) to prove the motive for the murder of Suresh. The evidence of P.Ws. I and 2 discloses that Dube brothers had purchased certain lands of villages Achole, Mi’lemore, Manikpur, Tuiinej and other villages touching Nalasopara. Bhai Thakur and his associates had taken illegal possession thereof. Suresh was trying to take back those lands. Bhai Thakur wanted those lands to be trar^erred to him and wanted Suresh to pay ‘haftas’ for carrying on iand developing and house building activities in that area. In this connection, Suresh was called by Bhai Thakur at his office at Virar a few days before 8.10.1989. We have already referred to the discussion and the threats given by Bhai Thakur and his associates to Suresh. We have also referred to the warning given to Suresh on telephone on 6.10.1989. P.W.6 had also stated in her evidence that Suresh was much worried after he had received the threat. The evidence of P.Ws. 1, 4 and 6 further discloses that it was decided by al? the fami’y mernbfers that Suresh should leave Nalasoparaandgo to his native piacQ till the danger to his life continued. In the cross-examination of those witnesses it has been brought out that except in respect of Survey No. 110 of Achole there was no document to establish that Suresh and his brother were ever in possession of those lands pursuant to agreements of sale. The evidence of these witnesses is found trustworthy and the motive can be held proved.

19. The evidence of P.Ws. I and 2 and that of P.W.28, Amarnath Tripathi proves and that is not indispute that Suresh had left his house at about 10.15 A.M., reached platform No. 2 within about 2 minutes lime and was shot between 10.30 and 10.35 A.M. At that time Amarnath Tripathi was with him. Two other persons had also accompanied as Suresh wanted to have a talk with them in connection with his business. One of them was Mukesh Shah (P.W.53). As to what happened thereafter on platform No. 2 of the Nalasopara railway station has been deposed by Amarnath Tripathi (P.W.48) and 0m Prakash (P.W.49). Others who had seen the indctent and were examined as eye witnesses but did not support the prosecution were Ranjit Thakkar (P.W.iO), Alex Marthin (P.W.Ji), Sanjay Dube (P.W.39), Dinesh Kashyap (P.W.39) and Mukesh Shah (P.W.53). Ranjit and Sanjay were the passengers wait’no on that platform for the train to come. Both of them have deposed about firing of shots and seeing Suresh lying on the platform in an Injured condition, but they did not identify any of the accused as’ the assailants of Suresh. Sanjay stated that A-l and A4 were not the persons who were seen by him running away on the railway track. Alex Martin (P.W.31) was the person near whose book-stall the incident had happened. He has stated that he had seen the person who had fired shots at Suresh and had also seen other persons running away after the incident, but he did not identify the assailants stating that he had seen them from the back side. He specifically denied that A-l was the person who had fired the shots. Dinesh Kashyap (P.W.44) had a pan-bidi stall on the platform. He also stated in the Court that he was not able to identify the assailants. All these witnesses were, therefore, declared hostile.’ ‘Mukesh Shah (P.W.53), who new Suresh and A-l and who was also injured, did not say in the court that A-l and some of the accused were the assailants of Suresh. The learned Mat Judge doubted involvement of A-1 on the ground that Mukesh Shah being dose to Suresh would have disclosed the Identity of the real assailants If he had really seen them. This witness must have been very dose to Suresh as ha had gone on the platform to have a talk with Surssh. The fact that he was injured by one of the shots fired at Suresh also indicates that he must have been close to Suresh. This witness at first denied that he know A-1, but admitted in cross- examination by the public prosecutor that he knew A.-.1 since before the incident. It was, therefore, more probable that he did not want to identify them out of fear and not because in fact he had not identified them. His evidence, however, remains unhelpful to the prosecution.

20. , . …Amsmath Tripsthi (P.W.4S) hsd come from his native place to Nalasopara on 4.10.1989 or 5.20.1909 and was sta/i’ng with ms sister and brother-in-law Shyam Sunder (P.W.2). tie.^ad come to see his sister and also to find a match for the daughter of his younger brother. Between 5.10.1989 and 9.10.1989 he had seen two boys. On 9.10.1989 he wanted to goto Vills Parle to see one boy. As further stated by him Suresh wanted to purchase a railway ticket for going to his native place Gorakhpur and, therefore, both of them had left together at 10.15 A.M. They went to platform no. 2 and were waiting for the train to arrive. As the train by which they were to leava for Mumbal was running late he went to a shoe-polishwaia to get his shoes polished. Suresh Dube purchased a newspaper from a nearby book-stall and started reading the same. While his shoes were being polished he heard the sound of a firearm shot and when he looked in that direction he saw one person with a pistol firing further shots at Suresh. Ha has also stated that 4 to 5 persons, had encircled Suresh. Because of firing persons standtn^ on the platform started running helter skelter. The shoepolishwala also got up and ran away.. He then got a push from one of those persons who had encircled C-uresh and, therefore, foil down from the platform. He immediately got up and looked at Suresh. He saw the same person who had earlier fired shots firing one more shot at Suresh who was by then lying on the platform. He, therefore, raised shouts “Save Save”. By that time one train arrived and taking advantage thereof all the assailants ran away. He has also deposed about how Suresh was taken home and declared dead by the doctors. According to him he become giddy, fell down and on hearing that Suresh was dead he became unconscious and remained unconscious for three days. After he regained consciousness he was toid by the relatives ofSuresh that murder was committed by Bhai Thai’ur’s men and he should not say anything to the pol’ce about the incident as that could prove to be dangerous to their lives because the police was well connected with Bhai Thakur. Therefore, he refused to give a statement to the police on 12.10.1989 when they had come to record it. In the court he identified A-1 to A-4 as the persons who had encircled Suresh. He also identified A-1 as the person who had fired shots at Suresh. This witness was confronted in his cross-examination by the police statements dated 12.10.1989 and 20.10.1989 purported t6 have been recorded by PI Berge. What the defence wanted to establish was that on 12.10.1989 he had given a different version as regards the manner in which the incident h-ad happened. His version in the said statement was that Suresh was standing on his left side while he was getting his shoes polished and when the bootwala was polishing his shoes with cloth, suddenly words “Are Is Ki Ma Ki” came out of Suresh’s mouth. At that time people on the platform started shouting “Run Run”. Immediately a big sound like bursting of a cracker was heard. He received a push from somebody, lost his balance and remained standing by leaning against the’Soo”-.^a.;. He looked at Suresh. He had bent down keeping his hand on ”5 stomach. It was also brought out in thecross-exsi-nmation that this witness had not given any description of the assailants m his statement dated 18.8.1992 and that he had further stated that the person who had fired shots’ was having In his hand a weapon like pistoL He was also contradicted by his police statement dated 18.8.1992 wherein he had stated that “immediately thereafter Suresh Dube sat down with hisb’oth hands on his forehead I had fallen down on the railway track because of the push. In the meantime local train ‘from Virar side and Churchgate side arrived. Dunng ‘that ‘time people who fired on Suresh Dube ran away towards Nalasopara West. This witriess had not stated in his said statement that “after I stood up on the railway track I saw Suresh Dube lying on the platform and the person who was firing bent down and fired on the head of Suresh Dube”. It was submitted by the learned counsel appearing for the respondents-accused that these omissions and contradictions clearly disdose an attempt on the part of this witness to make improvements upon his earlier version so as to mak-2 his evidence agornst A-1 to A-4 certain and acceptable. It w&s also urged’ that this witness in his statement dated 18.8.1992 had stated that “I had given,my statement before the police during my stay of 20-25 days with^Dubes’JamHy. ^er the incident of murder”. It was urged that this witness has falsely stated white giving evidence that he had not given any statement to the police either on 12.1G.19SS or 20.10.1939. It was further urged that this witness had denied to have made any statement on 12.10.1989 and 20.10.1989 as he knew that it contained a different and an uncertain version not only as regards the manner in which the incident had happened but also with regard to his seeing this assailants. The trial Court was also much impressed by these omissions and contradictions, and taking into consideration the circumstance that the incident had happened suddenly and large number of persons who were standing on the platform had started running helter skelter after hearing the sound of firing of a shot, held that this witness could not have sufficiently seen the assailants so as to correctly identify them in the court after.many years. In arriving at this conclusion ths trial Court also rdisd upon the statement in h’s cross-examination that he did not know from which direction the .sound of the first shot hed come and from what distance it was fired. ^We have earlier held that the previous Investigation was not. honest and; therefore, no importance could have been given to these omissions and contradictions proved from the statement dated 12.10.1989. Even if we proceed on the assumption that a statement of this witness was recorded by the police on 12.10.1999 it is not possible to agree with the submissions made on behalf of the respondents that the earlier version of this witness was totally different from his version in the Court. The discrepancies were with respect to number of assailants and number of shots fired by the assailants and also on the point of his seeing the assailant firing one^mpreshot after he had neceirVcd a push and fallen down onthe.railway track. Even the omissions and contradictions with respect to the statement dated 18.8.1992 are also not such as would,lead,to an inference that this witness was deliberately making improvements before the court in order to faiseiy say something that he had not seen. What appears from the statement is that this witness had stated in his statement dated 15.8.1992 that he h^d seen the last shot fired on Suresh after he ha^ faUen dovw from-the platform. Whathehad notstatei3.wasthathe.hadseen the.assailant firing thelastshot after he ^adgot up from the railway track,. The fact that this witness had gone to Nalasoparatome^t ^5.sister and had some work has remained unchallenged., Th^ fact that on 9.10.1989 he had left the house of Dubes with Suresh at 10.15 A.M. has also remained unchallenged. The presence of this witness on the platform at the time of incident has not been questioned. His version that he was getting his shoes polished at the time of the incident has also not been disputed. Whatwa’s urged before the trial Court and what has been bdisved by ’tis that as the incident had happened suddenly and the people standing on the platform had started running better skelter immediately after fhe first shot was fi^ed^th^ witness coritd not have seen the assailants clearly foral suftideh^y ong Wneso as to correctly recognise them after a lapse of few years. It was also urged that as this witness was not abia to make out from which direction the sound of firing a shot had come and was not able to state the distance from which it was fired would also support the finding that this witness really did not know the mannet and circumstances in which the assault on’Sure^h had taken place.’ ‘^hi5 witness has said that he was at a distance of about 3 ft. from Suresh when the incident had happened. That appears to be more probable and natural also. Both of them had left the house together and were to go together in the train. Except the circumstance that people on the platform had started running helter shelter a*te” hearing the sound of firing of shots, there was nothing before the court on the basis of which it could have-^dthat Amarnath cou.’d not have seen the assailants firing shots at Suresh. and surrounding him. Though the inddent had happenecTsuddeniy, firing of five shots from a pistol must have taken some time. Thte witness in our opinion had sufficient time to^e and registsr hh^s mind what was then happening to Suresh, his- brother-in-law. In our opinion the learned trial Judge was not right in hoidng that this witness very probably did not have sufFident opportunity to see the manner In which the whole incident had happened and who were the assailants.

21, The next point to be considerad is Whether identification of the accused by this witness in the Court can be believed when no attempt was made earlier by holding a te$t trial Court has found it unsafe and it was contended by the learned counsel for the accused that such identification has ^ LWhla f(AIR 1980 SC 1382]. A-1 to A-4 who were identified by February 1993. Three years had passed by then. Perhaps th^ was the reason why test identincatjon’ parade was not held. Anyway this infirmity of not hoping a test identification parade does diminish the evidentiary value of identification of these accused by this witness in the Court. If this was the only evidence regarding identification of those accused we would have held that it was not su^dent for convicting any of those four accused. But it stands corroborated by the evidence of another eye-witness and also by ti’e confessions of A-1 to A-4, if they are held admissible and voluntary.

22. It was contended by the learned counsel for the respondents-accused that the version of this witness that he.had become unconscious on hearing .that Suresh had died and had remained unconscious for three days was not believable and th^ trial Court was right in rejecting the evidence of.this witness oh that ground. It is difficult to appreciate what this witness wo^id have gained by falsely saying so. He had seen his brother^n- r law being shot dead. Therefore it was not unlikely that h.e got a shock and became unconscious. If what he has stated was no^ correct then the police would have recorded his statement befo/e 12.10.1989. The fact .that his statement co^.’d not be record before 12.10.1989 lends support to his evidence that he had remained unconscious, though not continuously, for three days.

23. 0m Prakash Brahmania (P.W.49), another eye- witness, was earning his livelihood in Bombay by working as a boot-polisher on the platforms of Nalasopara railway station. He had been doing so since about 10 years before the date of the Incident. He usad to sit on the platform from 6.30 in the morning till 6.00 o’clock in the evening. He knew Suresh and some accused as they often used to come to the railway platform to get their shoes polished. He also knew some of the accused as he was threatened by them on some occacions as a ‘.’. part of their activity of terrorising people of the locality. He has’ deposed that on the date of incident he had seen Suresh Dub^ and one person accompanying him on the railway platform ^t about 10.30 A.M. The person who had accompanied Sur^h came to him for getting his shoes polished. While he ^as polishing his shoes Suresh was reading a newspaper near’ihe book-stall at a distance of about 2 ft. from him. He then s^/v Narendra (A-1) nephew of Ma-nik Pstil, coming there and firf^g shots G*~ Suresh. He also s^w that 3 cr < yers”””.? were w’th A-;. Narain was one of them and he had a chopper with him. As s result of that firing people started running. He also got frightened and ran away and took shelter behind a nearby building. After waiting there for some time he went home. He identified Narendra (A-1), Dayaneshwar Patil (A-3) and Patric (A-4) in the Court. He identified Narendra (A-I) as the person who had fired shots at Suresh and Dayaneshwar (A-3) as the person who was standing with a chopper by the side of Suresh Dube. He has further deposed that because of this incident and fear of Manik Patil’s gang he left Bombay within about 2 to 3 days and went to his native place in Haryana. He stayed there for three years. When he returned to Bombay he came to know that the police was searching for him. Therefore, he met the police and his statement was recorded on 5.10.1992. In his cross-examination he stated that it was after about 8 to 10 days from his return from Haryana that his statement was recorded by the police. He also stated that his father had all the time remained in Bombay. The learned trial Judas has held this par of the evidence of this witness unbelievable. The trial Court held that there was no reason for this witness to remain away from Mumbai for a period of 3 years, particularly when his father had stayed back. The learned trial Judge also held that this witness had shifted to Bombay as he did not have enough work in Haryana and, therefore, it was not likely that he would have remained in Haryana for 3 years before returning to Bombay. The learned Judge also relied upon the circumstance that in his statement before the police he had given his Bombay address and stated that he was staying at that place since about 10 years. The reasoning of the trial Court was that if he was absent for 3 years from Bombay then he would not have stated to the police that he was staying at that address since about 10 years. In our opinion, the reasons given by the trial Court for disbelieving this part of the evidence of this witness are not at all sound. The fad: that this witness belongs to a small town in Sonepat District of Haryana State is not disputed. It is also proved that summons were served upon this witness while he was in Haryana. It was also suggested by the defence in his cross-examination that the police had arrested him from Haryana and brought him back to Bombay. The version of this witness was that he had come to Bombay on his own and he was not arrested or brought by the police. But the fact that he had gone back to Haryana and returned in 1992 has remained almost unchallenged. It is true that according to the previous investigation made by PI Padekar and PSIl Berge statements’ this witness were recorded on 11.10.1989, 13.10.1989 and 20.10.1989. This witness had denled- to have^ .given those statements and we are..inclmed to behieve this witness on this point in view of the finding recorded by us earlier that the Previous Investigation was not honest. This witness had been staying in Bombay and earning his livelihood. He had come to Bombay as he did not have any source of livelihood in Haryana. It was, therefore, not likely that without any compelling reason he would have left Bombay and gone to Haryana. Therefore, his evidence that he-had left Bombay and gone back to Haryanp because of fear of Manik Patil’s gang deserved to be accepted. He was an eye-witness to the incident. The investigation had disclosed that he was an eye-witness and that was the reason why a statement alleged to have been made by him was recorded by the police on 11.10.1989. The conduct of this witness was quite natural and there was hardly any justification for discarding his evidence on the ground that his version was not believable. This witness knew Suresh and also the accused. He stated so in his examination-in-chief. we find hardly anything in the cross-examination of this witness which would create any doubt regarding his knowing Suresh and some of the accused since before the date of the incident He had been working at Nalasopara railway station for about 10 years. He This witness has denied to have made any statement on 11.10.1939 or 13.10.1939. Wa will later on point out that naming of A-4 and A-11 as the murderers of Suresh was a manipulation done by the gangs of Bhai Thakur and Manik Pstil with the help of A- 14 to A-17. It is also not factuallyy correct to say that the witness had on 20.10.1989 identified A-4 and A-ll as the assailants of Suresh. According to the police statement this witness had only confirmed that the persons A-4 and A-ll who were in the police custody were the persons who had attacked Sunash. Therefore, the learned trial Judge was not right In rejecting his evidence on these two grounds. The trial Court also disbelieved his evidence on the ground that if he really knew the names of the accused then he should have disclosed the same not only to the poiice but to other person? with whom he had a talk. He had nelther disclosed the names to the police nor to his father with vvhom he had a talk about the incident. The evidence on this point is also not correctly read by the trial Court. What this witness has stated in his evidence is that he knew A-l by name and others by their faces According to this witness he did not have any talk with anyone with respect to the incident except with his father. It may be that he was afraid of naming any person belonging to the gang This witness has denied to havs made any statement on II.10.1989 or 13.10.1989. Wa will later on point out that naming of A-4 aid A-li as th murderers Suresh was a manipulation done by the gangs of Bhai Thakur and Manik Pstil with the help of A- 14 to A-17. It is also not factudll correct to say that the witness had on 20.10.19S9 identified A-4 and A-li as the assailants of Suresh. According to the police statement this witness had only confirmed that the persons A-4 and A-11 who were in the police custody were the persons who had attacked Suresh. Therefore, the learned trial Judge was not right in rejecting his evidence on these two grounds. The trial Court also disbelieved his evidence on the ground that if he really knew the names of the accused then he should have disclosed the same not only to the police but to other persons with whom he hed a talk. He had nether disclosed the names to the police nor to his father with whom he had a talk about the incident. The evidence on this point is also not correctly read by the trial Court. What this witness has stated in his evidence is that he knew A-l byname and others by their faces According to this witness he did not have any talk with anyone with respect to the incident except with his father. It may be that hs was afraid of naming any person belonging to tha Jang has Q’ven the reason why he knew Suresh and some of the accused. It was, therefore, more probable that he knew Suresh and also some of tha accused including A-l. This witness had no reason to falsely involve any of the accused. Moreover, being aware of the existence of Manik Patil’s gang and the terror which they had crested he would not have dared to falsely depose against them. His presenca on the railway platform on the date and time of the incident cannot be seriously disputed as that was the usual thing for him to do. There is nothing on record to show that he was close to Dube or was under any influence of the police and for that reason would depose falsely against A-l, A-3 and A-4.

24. The trial Court also has recorded a finding that possibly he knew the accused belonging to the gang of Manllc Patil. His evidence by the trial Court has been disbeliever mainly on the ground that the description of the assailants giver) by him in the earlier statements did not tally with A-l and that on 20.10.1989 he had identified A-4 and A-ll as the assailants of Suresh, while in the Court he had identified A-l, A-3, A-4 and Narain (A-10) as the real assailants of Suresh. We have already pointed out that the earlier investigaticn was not honest. of Manik Petll as the murderer and therefore had not disclosed’ the name of A-1 as the murdersr of Su’resh. A-l, A-3 and A-4 were sll Known to aim and, therefore there was no point in holding a test identification parade after this witnes had returned from Haryanac. Therefore, the learned this judge was not right in rejecting his evidence en :ne groundi that he had not disclosed names of the accused to anyone and that no test identification parade was held to test the identity of the real culprits. We are of the opinion that the trial Court was not justified in discarding the evidence of this witness on the ground that it was not believable. His evidence deserved to be accepted without any independent corroboration.

25. The prosecution has also relied upon the circumstance of discovery of a pistol by A-1 as an independent circumstance corroborating the evidence of eye-witnesses. The Panch Withnesstn^s did) not support the prosecution and it is also difficult to hold that it was really a case of discovery of pistol by A-l as contemplated by Section 27 of the Indian Evidence Act. The learned trial Judge has not relied upon the evidence relating to this circumstance and we are also of the opinion that the stated by these actused while retracting their eonfessions was: that they were obtained by giving threats.Of under undue influence. It was generally suggested to Shinde in crosses examination that he had obtained signatures of the accused on those confessions under undue Influence, coercion, fraud and mental and physical torture. It was not stated by the accused nor even suggested in the cross-examination of Shinde that particular type of physical or-mental torture or coercion was caused to the accused or in which rnanner-thay were defrauded or what undue ‘influence was exersed upon .them. Only suggestion that was made to the witneeses was that whiie recording the confessions he told them that he was Superintendent of Police and he had-stated so in order to impress the accused. In our opinion Shinde ha,ddone nothing wrong In disclosing his identity as he was really required to do so before recording the confessions. At this stage we will refer to some of the admissions and statements made by Shinde in his cross-examination. He admitted that he had felt that it was unfair on his part to record the confessions as he was supervising the investigation. He also admitted that he was not aware of the statutory requirements of Section 15 of the TADA Act and Rule 15 of the TADA Rules till he recorded the first confession. He also admitted that he had inadvertently committed a breach of the TADA Ruies while recording those confessions. He also admitted that .while recording the confessions he was not aware of the.procedure prescribed under Section 164 of the Criminal Procedure Code for recording confessions and also the provisions made by the Bombay High Court in its Criminal Manual. He also admitted that he had put. some more questions to the accused before recording their confessions in order to find out that they were willingly making those confessions but all those questions have not been recorded by him-in-the confessions. It was really on the basis of these admissions and some other reasons to be dealt with hereinafter that the trial Court held the confessions not admissible, not voluntary and not reliable. . ‘ 27. Section 15 of the TADA Act makes certain confessions made to police officers admissible in the trial of such person or co-accused, abettor or conspirator for. an offence under the Act or rules made there under. This. Court considering its constitutionaiity in Kartar Sinah v. State of Punjab [(1994) 3 SCO 569] observed that “having, regard to the legal competence of the legislature to make the law prescribing a different mode of proof, the meaningful purpose and object of the legislation, the gravity of terrorism unieashsd by the terrorists and disruptionists endangering not only the sovereignty and integrity of the country but also the normal life of the citizens, and the reluctance of even the victims as well as the public in coming forward, at the risk of their to give evidence” – held that the impugned section cannot be said to be suffering from any vice of unconstitutionality. Section 15 is thus an important departure from the ordinary law and must. receive that interpretation which would achieve the object of that provision and not frustrate or truncate it. Interpreting the said provision this Court in Statethrough Superintendent of police,CBI/SIT etc.. V. Nalini & Ors. (popularly known as Rajiv Gandhi Murder case), this Court has held that a confession recorded under Section IF of the TADA Act is to be considered as a substantive piece of evidence not only against the maker of, it but also against its co-accused. There was difference of opinion amongst the three learned Judges who decided that case regarding the evidentiary value of such a confession against the co-accused is tried in the same case. Wadhwa,J. observed that what weight snould be attached to such a confession is a matter of discretion of the Court and as a matter of prudence the Court may look for some corroboration before relying upon such confession against the co-accused. Quadri,J. held that the rule of prudence would require that the Court should examine the same with great care and should not be relied upon unless it is corroborated generally by other evidence on record. Thomas, J. held that “Thus the established position which gained ground for a very long time is that while a confession is substantive evidence against ita maker it cannot be used as substantive evidence against another person even if the latter is a co- accused, but it can beused as a piece of corroborative material to support other substantive evidence.” Relying upon the decision of this Court in Kaipnath Rai v. State [(1997) 8SCC 732], it was submitted by the learned counsel for the respondents that even a confession made admissible under Section 15 of the TADA Act can be used as against the co- accused only in the same manner and subject to the same conditions as stipulated .under Section 30 of the Evidence Act. An observation to the same effect is to be found in paragraph 75 of the judgement. In fact no such point fell for decision in that case and it appears to be a passing observation only. In view of the decision of this Court in NaUni’s case the said observation can now be regarded as correct position of law. The correct legal position Is that the confession recorded under Saction 15 of the TADA Act is a substantive piece of evidence and can be. used aoainst a co -accused also otherwise held to be admissilbie voluntary and believable.

28. The confessions have been held inadmissible mainly on two grounds. The first ground given by the learned trial Judge is that the power under Section 15 of the TADA Act was exercised either malafide or without proper application of mind. The second ground on which they are held inadmissible is that they were recorded in breach of Rules 15(2) and 15(3) of the TADA Rules and also in breach of the requirements’ of Section 164 and the High Court Criminal .Manual. The learned trial Judge held that the TADA Act was applied in -this case without any justification. The permission was granted in. that behalf without any application of mind. According to the trial Court there was material on the basis of which TADA Act could have been invoked at that stage and that most probably the said Act Was invoked in order to defeat the ball application filed by two accused in the High Court. In our opinion the trial Court.was wrong in taking this view. We have already pointed out earlier that Deshnukh) had collected enough materil on the basis or which reasonable satisfaction could have been arrived at that the acts committed by the two gangs were terrorist acts. It is no doubt true that it was wrongly reported by Deshm.mukh that Section 5 was also applicable in this case and that without proper verification sanction was granted to proceed under that section also. The applicability of Section 5 depended upon existence of a requirsite notification by the State Government. It was wrongly reported by PI Deshmukh in his report that such a notification was issued and relying upon his statement the higher officer had given the sanction. Merely on this ground it cannot be said that Shinde has exercised the power under Se-‘:t’ion 15 of the TADA Act mala fide. The learned trial Judge has also held that it was not fair on the part of Shinde to record the concessions as he was also supervising the investigation. Shinde has clearly stated in his evidence that he had made attempts to find out if any other Superintendent of Police was available for recording the confessions and as others had declined to oblige him he ‘had no other option but t’o record them. We see no illegality or impropriety in Shinde recording the confessions even though he was supervising the investigation. One more flimsy reason given by the trial Court for holding that the power under Section 15 was exercised male fide is that the accused making the confessions were not told that they have been recorded under tne TADA Act. No such grievance was made by the accused in their statement under Section 313. On the other hand, it appears from the confessions themselves that the accused were made aware of the fact that those confessions were recorded under the TADA Act.

29. The learned trial Judge has held the confessions Inadmissible on the ground that they have been recorded in breach of Rules 15(2) and 15(3) of the TADA Rules. The rules read as under:

S.15(2). The police officer shall before recording any confession under sub- section. (1), explain to the person making it that he is not bound to make a confession and that, if he does so, It may be used as evidence against him and such police officer shall not record any such confession unless upon questioning the person making it, he has reason to believe that it is being made voluntarily.”

“R.15(3). Tne confession shall, if it is in writing, be – (a) signed by tha person who makes the confession; and

(b) by the police officer who shall also certify under his own hand that such confession was taken in his presence and recorded by him and that the record contains a full and true account of the confession made by the person and .such police officer shall make a memorandum at the end of the confession to the follHowing effect.’-

“I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and, I believe that this confession was voluntarily made.. lt was taken in my presence and hearing and recorded by me and was read over to the person making it and admitted by mm to be correct, and it contains a full and true account of the statement made by him.

Sd/- Police Officer.”

Relying on sub-rule 2 of Rule 15 it was contended on behalf of the respondents that: the notice officer Is required to explain to the person making confession that he is not bound to make it and that if he makes it it can be used agsinst him as evidence. The said provision also requires that he should question the person making it in order to assure him that he is making it voluntarily. It was submitted by Mr. Kotwal, learned counsel appearing for some of the respondents that both these things are required to be done ‘before recording’ any confession. When a confession is recorded in two parts – the preliminary part containing record of how and for what the person was forwarded and the questions and answers put to him for ascertaining his voluntary willingness to make a confession even after being told that the confession may be used against his as evidence and the second part which contains the actual confessional statement it is the second part which has to be regarded the confessional statement and not the preliminary part. Therefore, the obligation to explain and ascertain is to be performed .vhile recording the real confessional part and doing so earlier when the preliminary part Is recorded cannot be regarded proper compliance of the requirement of Rule 15 (2). The police officer must explain and give the statutory warning before recording the actual confessional part and it is at that point of time that he has to ascertain by questioning the person making it that he is making the confession voluntarily. He submitted that the confessional statements were recorded in this case in two parts and while recording the second part no questions were asked to the accused to ascertain whether he was making the confession voluntarily. He also submitted that while recording the second part no Warning was given to the accused that he was not bound to make the confession and that if he made it, then it can be used against him.

30. Neither Section 15 nor Rule 15 contemption recording of confessional statement in two parte or giving time. to the person making a confession to think over and reconsider whether he still wants to make it in spite of being told that ha his not bound to make it and that it can be used against him. If in order to be assured that the person concerned makes the confession willingly and voluntarily the recording officer gives him some time to think over and for that reason records the confessional statement in two parts, then they cannot be regarded as two independent and separate statements. The second part being in continuation of the first part both the parts. have to be treated as one confessional statement. If the recording police officer feels assured after giving the statutory warning that the person who wants’ to make a confession is doing so voluntarily he may not give any time for reconsideration and in that case there would be only one continuous statement Therefore, the contention that when the confession is recorded in two parts, only the second part-can be regarded as. the confession and while recording the second part the police officer should give the statutory warning ana and ascertain if the person concerned is making it voluntarily, cannot be accepted. The requirement of law is that before recording the confession the police officer should ascertain by putting questions to the maker of it that he is making the confession voluntarily and he *, should also explain to him that he is not bound to make the confession and that if he makes it that can be used against him as evidence. In this case DSP Shinde had put questions to each of the accused who was brought before him to ascertain if he was willing to make a confession voluntarily and had also given the statutory warning to him on that day. Even after the accused had shown his willingness to make a confession Shinde had given him time not exceeding 48 hours to think over his readiness to make the confession. When the accused was brought to him again he had again ascertained if he was still ready and willing to give a statement. He had also asked him if he was making it under any pressure or coercion or threat. Only after the accued had replied sn negative he had told the accused to say whatever he wanted to state about Suresh Dube’s murder. In view of these facts and circumstances it is not possible to uphold the finding recorded by the trial Court and to accept the contention raised on behalf of the respondents that while recording the confessions of the accused Shinde had committed a breach of Rule 15(2).

31. As regards the breach of Rule 15(3) it has been held that Shinde tdid not write the certificates and the memorandums “” in the same form and terms as are prescribed by that rule. It was submitted by the learned counsel for the respondents that the certificates and memorandums have not been recorded by Shinde in identical terms and as Rule 15 is held mandatory the trial Court was right in holding them inadmissible for non- compliance with that mandatory requirement. Therefore, the question to be considered is whether the certificate and ‘ memorandum are required to be written by that rule in the same form and terms. What Rule 15(3)(b) requires is that the police ” officer-should certify under his own hand that “such confession'”‘ was taken in.his presence end recorded by him and that the record contains a full and true account of the confession made by the’ person”. According to that rule the memorandum should be to the following effect:

“I have explained to (name) that he is not bound to make a confession and that; it he does so, any confession he may make may be used as evidence against him and I belleve that this confession was voluntarily made. It was taken in my presence and hearing and recorded by me and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him.”

Writing the certificate and making the memorandum are thus made mandatory to prove that the accused was explained that he was not bound to make a confession and that if he made it it can ba used against him as evidence, that the confession was voluntary and that it was taken down by the police officer fully and correctly. These matters are not left to be proved by oral. evidence atone. The requirement of rule is preparation of contemporaneous record regarding the manner of recording the conf ssion in presence of the person making tt. Though giving cf the statutory warning ascertaining voluntariness of the contession and preparation of a contemporaneous record in presence of the person making the confession are mandatory requirements of that rule, we see no good reason why the form and the words of the certificate and memorandum should also be held mendatorry. What are the mandatory requirements of a provision cannot be decided by overlooking the object of that provision. They need not go beyond the purpose sought to be achieved. The purpose of the provision is to see that all frmalities are performed by the recording off:-:c-‘ ^nself and by- others to ensure full compliance of the procedure and seriousness of recording a confession. We fall to appreciate how any departure from the form or the words can adversely affect the object of the provision or the person making the confession so long as the court is able to conclude that the requirements have been substantially complied with. No public . purpose is likely to be achieved by holding that the certificate and memorandum should be in the same form and also in the “same terms are to be found in Rule l5(3)(b). We fail to appreciate how sanctity of the confession would get adversely affected merely because the certificate and memorandum are not separately written but are mixed up or because different words conveying the samething as is required are used by the -recording officer. We hold that the trial Court committed an error of law in holding that because the certificates and mernorandums are not in the same form and words they must be regarded as inadmissible. Having gone through the certificates and the memorandums made by Shinde at the end of the confessions what we find Is that he had mixed up what is retired .to be stated in the certificate and what is required to be stated in the memorandum. He has stated in each of the certificates and the memorandums that he had ascertained that the accused was making the confession willingly and voluntarily and that he was under no pressure or enticement. It is further stated therein that he had recorded the confession in his own hand-writing (except in case of A-7 whose confession was recorded with the help of a writer). He has also stated that it was recorded as per the say of the accused, that it was read over to the accused completely, that the accused had personally read it, that he had ascertained thereafter that it was recorded as per his say and that the confession was taken in his presence and recorded by him. It is true that he has not specifically stated therein that the record contains ‘a full and true account of the confession made’. The very fact that he had recorded the confession in his own hand-writing would imply that it was recorded in his presence and was recorded by him. So also when he stated in the certificates and memorandums that the confession was recorded as per the say of the accused, that it was read over to him fully, that the accused himself personally read it and that he had ascertained that ‘t was recorded as per his say that would mean that it contains ‘a full and true account of the confession’ and that the contents were admitted by the accused. Thus, while writing the certificats and the memorandum what Shinde has done is to mix up the two and use his own words to state what he had done. Only thing that we find missing therein is a statement to the effect that he had explained to the accused that he was not bound to make a confession and that if he did so the confession might be used as evidence against him. Such a statement instead of appearing at the end of the confession in the memorandum appears in the earlier part of the confession in the question and answer form. Each of the accused making the confession was explained about his right not to make the confession and the danger of its being used against him as evidence. That statement appears In the body of the confession but not at the end of it. Can the confession be regarded as not in-conformity with Rule 15(3)(b) only for that reason? We find no good reason to hoid like that. We hold that the triat Court was wrong in holding that there was a breach of Rule 15(3) and, therefore, the confessions were inadmissible and bad. ,-. – /..

32. It was next submiittsd that though Section 164 Cr.P.C. does not strictly apply to confessions recorded under Section 15 of 7.^^ A”t, the provisions contained in Section 15(2) of TADA Act and 162 (2) and 164(4} of Cr.P.C. are similar and that would imply that the requirements of law regarding the procedure for recording a confession are the same. Both the provisions require that before recording confessions the accused must be told that he is not bound to make a confession and that if he makes it then it can be used as .., evidence against him. Both these provisions require that before ,- recording the confession the recording officer has to question .. the accused in order to satisfy himself that he is making the confession voluntarily and after recording it to issue a certificate and memorandum to the effect that the accused was explained about his right to be informed that he was not bound to make -;:’ -;K. –q..-.-, — – P^^ the confession and that it could be used against him, that he believed that the confession was made voluntarily, that it was , taken down in his presence and was read over to him, that it was admitted as correct by him and that it contains a full and true account of the statement made him. It was, therefore, submitted that the guidelines issued by the High Court for recording a confession under Section 164 Cr.P.C. are also required to be followed by the police officer recording a confession under the TADA Act. Otherwise a situation may arise where in the same trial there may be a confession of an accused recorder by a Magistrate without following the guidellnes contained in the High’ Court Manual and a confession made by another accused and recorded by a police officer under the TADA Act who has not followed these guidelines while the one recorded by the Magistrate may not bs recorded as evidence the ‘other one will be treated as evidence and can be used against him. in the aliternative, it was submitted that even if it is held that the guidelines issued under Section 164 Cr.P.C. by the High Court are not ‘required to ba followed while recording a confession undersection 15 of TADA Act at least the well recognised principles pointed out by this Court in Kartar Singh’s case (supra) are required to be followed. The said guidelines have been suggested by this Court as well recognised principles of fairness to be followed to ensure that the confession obtained in the pre-indictment interrogation by a police ‘officer not lower in rank than a Superintendent of Police is not’ tainted with any vice. What is missed by the learned counsel is that while recommending those guidelines it was made clear by this Court that it is really for the Court trying the offence to decide the question of admissibllity or reliability of a confession by Using its judicial wisdom, from what has been observed in the said’ decision it does not follow that if the suggested guidelines are not followed then the confession must be discarded as inadmissible or bad on that score or on the ground that it Is not in confirmity with Section 15(2) of the TADA Act and Rule 15 of the TADA Rules. The police officer recording a confession under Secion 15 is really pot bound to follow any other procedure. The rules or the guidelines framed by the Bombay High Court for recording a confession by a Magistrate under Section 164 Cr.P.C. do not by themselves apply to recording of a confession under Section 15 of the TADA Act. Therefore merely because some of those guidelines were not followed while recording the confessions it cannot for that reason be held that the said confessions have lost their evidentiary value. If while recording the confessions Shinde had followed all those guidelines also then that would have been a circumstance helpful in infering that the confessions were made after full understanding and voluntarily. In this case there is nothing on record to show, except that the confessions were recorded by Shinde in police station, that they were not recorded in free atmosphere. No other person was allowed to remain present at that time and ail the accussed were given time to reconsider their willingness. After they were produced again Shinde had ascertained whether they were still willing to make confessions. All- the accused were previously toid that they were not bound to make a confession. Each one of them was warned that if he made a confession then it could be used against him.

33. ‘ Shinde had tried to ascertain if any threat or inducement was given to them or whether they were ill treated or pressurized. Alt the accused had categorically stated that no such thing had happened. From the answers given by the accused it can be said that Shinde had good reason to believe that the accused were , making confessional statements voluntarily. In his evidence also he has stated so and nothing has been brought out in his cross examination from which It can be said that he was not so satisfied or that he did not really believe that the confessions were made by the accused voluntarily. The.. learned trial Judge held the confessions not voluntary as he was of the view that A-l to A-8 and A-ll were hardened criminals and it was not believabla that they would have one after the other shown their willingness, to make confessions. It was not even the case of the accused that they * , were nottaken to Shinde for recording their confessions. The only suggestion that was made in his cross-examination was that he had obtained those confessions after exerting influence, coercion and physical and mental torture. We have already pointed out earlier that in absence of any specific act suggested by the defence it Is not possible to accept the belated allegation made by those accused that their confessions were obtained In that manner. On careful consideration of the evidence of PI Deshmukh and DSP Shinde, we find that all those accused had made their confessions voluntarily. The confessions also receive independent corroboration on material points from the evidence of the two eye-witnesses and also from the evidence of P.Ws. I to 5. We have, therefore, no hesitation in holding that they are true and reliable and can form a iafe basis for conviction of those respondents/accused who have admitted to have taken part in the murder of Suresh and in commission of terrorist acts.

34. A-1 in his confession (Exts. 571 and 571-A) has admitted that he was a member of the gang of Manik Patil. He has further admitted therein that Manik Patil and his men were entrusted by Bhai Thakur the job of finishing Suresh and because they had not done their work quickly, Bhai Thakur was angry with them. So they were keeping a watch on Suresh Dube and on the day of the incident he was informed by one Kalidas Patil that Suresh was on platform No. 2. He immediately loaded his pistol and along with A-2 to A-5 and Narain Gouda went to the railway station. Suresh was seen reading a newspaper and another person with Him was ‘standing nearby and getting his shoes polished. He crossed him and went ahead and also did Namaskar. As there were many persons near the book-stall at that point of time he went ahead on the platform and again returned near that book-stall. He then took out the pistol from his pocket and fired seven shots at Suresh. He has also stated in his confession how he and others thereafter ran away and what he and others did thereafter. A-2, A-3 and A-4 in their confessional statements (Exts. 578 and 578-A, 563 and 563-A and 584 and 584-A respectively) have also stated that Manik Seth had given Instructions to Narendra (A-l) to finish Suresh and they were told to accompany Narendra whenever Narendra called them for help. They have admitted that on being told by A-l that “Suresh Dube has come at Nalasopara railway station. Let us all go”, they went to the railway platform along with A-l. They have all stated that Narendra fired shots and after Suresh had collapsed on the platform they had run away. A-5 has also admitted in his confession that he had gone to the railway platform running aiong with A-l to help him as decided earlier All of them have clearly admitted that the murder of Suresh was committed on instructions of Manik Patil (A-6) and Bhai Thakur. A-6 also confessed that he was the leader of the gang and that as decided by Bhaii Thakur, Don (Pendari) was to finished by the men of Bhai Thakur and they were to finish Dube. Therefore, A-l and his boys were keeping a watch upon movements of Suresh and he had instructed A-l and his boys to finish Suresh as soon as possible. So far as participation of A-l to A-4 in the murder of Suresh is concerned the confessions stand corroborated by the evidence of the two eye-witnesses. The confessions of A-5 and A-6 being substantive evidence are sufficient for considering them and they also receive corroboration from the confessions of A-l to A-4 and also receive genera’ corroboration as regards the other illegai activities committed by them from the evidence of P.Ws. I to 5 and those withness examined by the prosecution to prove that they were the victims of some of the terrorist acts committed by Thakur and Manik Patil. Therefore, relying upon the .<-..^’on of A-l to A-6 and the evidence of the two any witnesses Amanath and 0m Prakash, we hold that Suresh was k’illed by A-1.~-flring shots from his pi’stol and- that was done in prosecution of the object of the larger conspiracy hatched by Bhai Thakur, Manik Patii and some members of their gangs and the unlawful assembly consisting of A-l to A-6 and some others. We, therefore, hold A-l gulity under Section 302 I.P.C. and A-2 to A-6 under Section 302 read with Sections 120 B and 149 I.P.C. We may state that the finding recorded by tha trial Court that the death of Suresh was homicidal and that he died of the injuries caused to him by the bullets with which he was hit has not been questioned before us.

35. To prove the terrorist acts committed by the gangs of Bhai Tnakui and Manik Patil, the prosecution had examined some police officers and some others who were the victims of the to rorist acts. The police officers examined by the prosecution were PI Tadavi (P.W.68), ASI Paradkar (P. W. 6Q), PSI Ram Krishna (P.W.70), SDPO Deshmukh (P.W.71), DIG Suradaka’- (P.W.75}. DGP Baraokar (P.W.77) and ACP Vasant Pagare (P.W.90). PI Tadavi (P.W.68) was attached -o the Virar police station between 9.4.1985 and 24.1.1986. He has deposed that during that period he had found the three gangs operating in the area under the police station. They were the gangs “of Bhal Thakur. Nizam and Karu. Bhai Thakur’s gang was and stay with PI Kukdolkar and both of them used to car Prashant Tandel (A-8) to see them. He admitted that he had not taken any, action against-any of these gangs nor he had suspected anything wrong or improper because of those meetings. He denied that he was deposing falsely against the accused at the instance of Deshmukh. Ram Krishna Rengunthawar (P.W.70) was a senior PSI of Virar police station from, 17.5.1981 to 15.8.1982. He has deposed that during that period he had registered three offences against Bhai Thakur. ‘ In 1984 he was attached to CID Crime. Out of those three cases two cases were transferred to CID branch and in the third case the accused were acquitted. He stated that the said two cases were compounded out of fear. But he admitted in his cross- examination that he had not made any report to any higher officer in that behalf. Deshmukh (P.W.71) was the SDPO of the Western Railway between 1.3.1992 and 30.6.1993. He had no persona’ knowledge with respect to the illegal activities of the two gangs of Bhai Thakur and Manik Patil. But during the investigation made between 18.5.1992 and 23.9.1992 and also thereafter he had come to know about their illegal activities and the terror created by them in the area. He admitted that he had not recived any complaint against thoso two gangs for forcibly

36. The prosecution also examined Pushpa Pendhari (P.W.19), Balram (P.W.34), Kanhaya (P.W.35), Jaffar (P.VV.40),’ Waman (P.W.41), Sakharam (P.W.42), Jsjannath (P.W. 45), Subhash (P.W.67) and Naaz (P.W .97) to prove that the gangs of Bhai Thakur and Manik Patil were engaged in committing terrorist acts. Out of these witnesses P.Ws. 34, 41, 42 and 4^ have not referred to any specific terrorist act committed by those two gangs. P.W.97 has deposad about an incident which is beyond the charge period and, therefore, her evidence was rightly not considered by the trial Court. P.W.19 has deposed about some acts of the gangs of Bhai Thakur and Kanik Patil, the rivalry between Bharat Pendhari and those two gangs and the murder of Bharat Pendhari on 14.9.1989 but they at the most suggest that there were gang wars. P.W.25 has deposed that his property was demanded and threats were given to him by Bhai Thakur and therefore he had to leave Virar. P.W.26 has also stated that he was required to sell his land because of threats and terror of Bhai Thakur. P.W.35 was staying in Virar since 1966. He has deposed that he was assaulted by the men of Bhai Thakur >n 1984 and, therefore, he shifted to Vasai in January 1985 and for some time had gone to his native place in U.P. What was submitted by the learned counsel for the respondents was that the evidence of these witnesses even if it is believed it proves commission of illegsl acts involving Violence but fails short of constituting ‘terrorist acts’ as contempiated by Section 3 of the TADA Act. It is no doubt true that the evidence of these witnesses, except that of P.W.19, is not specific and by itself may not be regarded as sufficient to prove terrorist acts but they provide sufficient corroboration to the admissions made by A-1 to A-6 in their confessional statements that the gangs of Bhai Thakur and Manik Patil had created terror in the areas of their operation. We, therefore, see no reason why relying upon those confessions and the evidence of these witnesses a finding that A-1 to A-6 were engaged in committing terrorist acts, cannot be recorded. A-7 has not confessed in clear terms his involvement in commission of terrorist acts or in the murder of Suresh. A-8 and A-11 have also not admitted to have played any role in the murder of Suresh or in commission of terrorist acts by Bhai Thakur and Manik Patil, though both these accused have generally stated in their confessional statements about the illegal activities committed by those two gangs. We, therefore, hold A-1 to A-6 guilty under Section 3 (3) of the TADA Act also.

37. The charge against the police officers A-14 to A-17 was that as a part of the criminal conspiracy with Bhai Thakur and his men, they had caused evidence of commission of the offence to disappear and by that dishonest investigation have tried to screen the real offenders from legal punishment and thereby they have committed offences punishable under Sections 201, 217 and 218 read with 120-B I.P.C. They are also charged for the offences punishable under Sections 3(3) and 3(4) of the TADA Act read with 120-B I.P.C. Except the confessional statements of the co-accused there is no other independent evidence to show the involvement of A-14 to A-17 as alleged. The confessions no doubt create a strong suspicion that A-14 to A-17 were maintaining good relations with Bhai Thakur and A-8 (Prashant) and that they had possibly helped Bhai Thakur and Manik Patil in screening the real offenders. The role which they played creates a strong suspicion regarding their connection with the gangs of Bhai Thakur and Manik Patil. However, we do not think it safe to convict them only on the basis oft theConfessions of the co-accused. ‘

38. In the result, these appeals are partly allowed. The Judgment and the order of acquittal passed by the learned Judge, Dasignsted Court, Pune in Terrorist Sessions Case No. 32 of 1993 in favour of respondent Nos. I to 6 (A-1 to A-6) are set aside, Respondent NO. I Narendm Bhoir is convicted under Section -02 I.P.C. and santencad to suffer imprisonment for life. He is also cenvicted under Section 25(l)(a) of the Arms Act. and sentenced to suffer rigorous imprisonment for six months. Respondent Nos. 2 to 6 are convicted under Section 302 read with Section 120-B and Section 149 I.P.C. and sentenced to suffer imprisonment for life. Respondent Nos. I to 6 are also convicted under Section 3(3) of the TADA Act and sentenced to suffer imprisonment for 10 years. All of them are acquitted of other charges. Acquittal of the rest of the respondents 1s- confirmed andappeals against them. ace dismissed.

Categories: further investigation

SC: Further investigation can be ordered to arrive at truth, to cure defective investigation, when fresh facts comes to light…further investigation is not altogether ruled out merely because cognizance has been taken by the Court…The mere fact that there may be further delay in concluding the trial should not stand on the way of further investigation

http://indiankanoon.org/doc/1445805/

Hasanbhai Valibhai Qureshi vs State Of Gujarat And Ors on 5 April, 2004
Author: J Arijit Pasayat
Bench: D Raju, A Pasayat.

CASE NO.:

Appeal (crl.) 421 of 2004

PETITIONER:

Hasanbhai Valibhai Qureshi

RESPONDENT:

State of Gujarat and Ors.

DATE OF JUDGMENT: 05/04/2004

BENCH:

DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT:

J U D G M E N T

(Arising out of SLP(Crl.) No. 472/2004)

ARIJIT PASAYAT,J

Leave granted.

The appellant who is the original complainant in the case relating to FIR NO. 134/2003 in the police station, Sub District, Veraval, district Junagadh calls in question legality of the judgment rendered by a learned Single Judge of the Gujarat High Court, Ahmedabad dismissing the writ petition filed by the appellant.

Main prayer in the writ petition was for issuance of appropriate writ for re-investigation by an independent agency. The prayer was made alleging that the local police had succumbed to the pressure exercised by local MLA and the investigation was not carried out in a straight forward manner. It was alleged that on 23.9.2003 around 12.30 a.m. persons belonging to a particular community carried deadly weapons and combustible materials and pursuant to the common object of an unlawful assembly caused destruction of shops belonging to persons of another community, by breaking them open and setting them ablaze. There was also large scale looting of articles. About 53 persons were arrested. Initially, in the FIR various offences including Sections 395 and 120B of the Indian Penal Code, 1860 (in short the ‘IPC’) and Section 135 of the Bombay Police Act were noted and mentioned by the police officials. But strangely after a few hours of the registration of the FIR wherein the aforesaid offences were mentioned, Sections 395 and 120B were deleted by the prosecuting agency and because of such deletion the accused persons managed to get bail. The prayer in the aforesaid circumstances was for investigation by an independent investigating agency. It was brought to the notice of the High Court that a bare perusal of the statements clearly indicate the applicability of those provisions and commission of such offences, contrary to what has been stated by the prosecuting agency.

The High Court noted that specific allegations were made regarding the biased approach of the police officials under the influence of local MLA. The petition was resisted on the ground that on detailed investigation it was noticed that the offences relatable to Sections 395 and 120B IPC were not made out and, therefore, were deleted. Such a course is permissible in law. The High Court was of the view that if further investigation is necessary the remedy is available in the Code of Criminal Procedure, 1973 (in short the ‘Code’) and further investigation can be carried out under the supervision of the trial Court. Moreover, it was held the police was not the ultimate authority who can decide as to which sections are applicable. Appropriate steps can be taken by the complainant along with the prosecuting agency before the trial Court. Since such remedy was available under the Code, the petition under Article 226 of the Constitution of India, 1950 (in short the ‘Constitution’) was not entertained.

In support of the appeal, learned counsel for the appellant submitted that the role of the prosecuting agency from the beginning is tainted with suspicion and visible leaning in favour of the accused persons. There was no urgency to seek deletion of Sections 395 and 120B IPC without full and complete investigation. It cannot be left to the ipse dixit of the investigating officer. That the complainant could approach the trial Court is no reason to gloss over partisan approach and attitude of the prosecuting agency, which was obliged to act independently and ensure that the guilty are brought before Court for appropriate offences though it is for the Court ultimately to find whether they are guilty or not. The High Court has failed to notice that the prosecuting agency was showing unusual interest in protecting the accused persons and, therefore, the scope of the complainant moving the trial Court along with the prosecuting agency is a remote possibility. The prosecuting agency in the circumstances cannot expected to be reasonable or co-operate, fairly and just in order to effectively enforce and maintain law and order.

The respondents supported the judgment of the High Court stating that no infirmity exists in the view taken by the High Court to warrant interference.

By order dated 19.3.2004 direction was given to the Director General of Police, Gujarat to submit a report as to whether the action taken by the investigating officer was proper and whether there was need for further investigation. In the report submitted by the Director General of Police, it has been fairly accepted that the deletion of Section 120B IPC does not appear to be proper. In any event the Court of Additional Sessions Judge of the 10th Fast-track Court at Veraval has framed charge in Sessions Case No.64/2003 on 22.3.2004 against three of the accused persons under Section 120B IPC. It has been stated that though retention of Section 120B IPC was desirable, but nothing more is required to be done in view of the fact that the Sessions Judge has already framed charge under the section. It has been stated that there were few lapses in investigation and inquiry is being caused against the investigation officer with a view to initiate suitable departmental action. So far as the desirability of further investigation is concerned, it is stated that the case has been fixed for day-to-day hearing from 5.4.2004 to 15.4.2004 and if further investigation is done, it would prove infructuous and would only delay process of trial unnecessarily.

Section 228 of the Code in Chapter XVII and Section 240 in Chapter XIX deal with framing of the charge during trial before a Court of Sessions and trial of Warrant -cases by Magistrates respectively. There is a scope of alteration of the charge during trial on the basis of materials brought on record. Section 216 of the Code appearing in Chapter XVII clearly stipulates that any court may alter or add to any charge at any time before judgment is pronounced. Whenever such alteration or addition is made the same is to be read out and informed to the accused.

In Kantilal Chandulal Mehta v. State of Maharashtra (AIR 1970 SC 359) it was held that the Code gives ample power to the Courts to alter or amend a charge whether by the Trial Court or by the Appellate Court provided that the accused has not to face a charge for a new offence or is not prejudiced either by keeping him in the dark about the charge or in not giving him a full opportunity of meeting it and putting forward any defence open to him on the charge finally preferred against him. Section 217 deals with recall, if necessary of witnesses when the charge is altered.

Therefore, if during trial the trial Court on a consideration of broad probabilities of the case based upon total effect of the evidence and documents produced is satisfied that any addition or alteration of the charge is necessary, it is free to do so, and there can be no legal bar to appropriately act as the exigencies of the case warrant or necessitate.

Coming to the question whether a further investigation is warranted, the hands of the investigating agency or the Court should not be tied down on the ground that further investigation may delay the trial, as the ultimate object is to arrive at the truth.

Sub-section (8) of Section 173 of the Code permits further investigation, and even dehors any direction from the Court as such, it is open to the police to conduct proper investigation, even after the Court took cognizance of any offence on the strength of a police report earlier submitted. All the more so, if as in this case, the Head of the Police Department also was not satisfied of the propriety or the manner and nature of investigation already conducted.

In Om Prakash Narang and Anr. v State (Delhi Admn.) (AIR 1979 SC 1791) it was observed by this Court that further investigation is not altogether ruled out merely because cognizance has been taken by the Court. When defective investigation comes to light during course of trial, it may be cured by further investigation if circumstances so permitted. It would ordinarily be desirable and all the more so in this case, that police should inform the Court and seek formal permission to make further investigation when fresh facts come to light instead of being silent over the matter keeping in view only the need for an early trial since an effective trial for real or actual offences found during course of proper investigation is as much relevant, desirable and necessary as an expeditious disposal of the mater by the Courts. In view of the aforesaid position in law if there is necessity for further investigation the same can certainly be done as prescribed by law. The mere fact that there may be further delay in concluding the trial should not stand on the way of further investigation if that would help the Court in arriving at the truth and do real and substantial as well as effective justice. We make it clear that we have not expressed any final opinion on the merits of the case.

The appeal is accordingly finally disposed of, on the above terms.

Categories: further investigation

SC: CBI directed to do further investigation to instill confidence in the public mind as the offence is grave

http://indiankanoon.org/doc/1143743/

Gudalure M.J. Cherian And Ors. vs Union Of India (Uoi) And Ors. on 9 December, 1991
Equivalent citations: 1992 (1) Crimes 2 SC, JT 1991 (4) SC 535
Author: K Singh
Bench: K Singh, M F Beevi

JUDGMENT

JUDGMENT

Kuldip Singh, J.

1. This petition under Article 32 of the Constitution of India, in public interest, has been filed by three prominent Citizens regarding the alleged rape of two Nuns at Gajraula in Uttar Pradesh on July 13,1990 by criminals who broke into the residential quarters of St. Mary’s Convent School and assaulted several other Nuns before decamping with about Rs.1.10 lakhs in cash.

2. This Court issued notice on November 26, 1990. Counter affidavits have been filed by senior Superintendent of Police, Muradabad, Shri Subhash Kajla, S.H.O., Gajraula police station at the relevant time, and Dr. Meera Singh who medically examined the Nuns.

3. The learned Counsel appearing for the petitioners has pressed before us only two of the many reliefs asked for in the writ petition. It is contended that the investigation of the case be entrusted to the Central Bureau of Investigation (CBI) and the case be transferred from the file of Sessions J udge, Muradabad to Sessions Judge, Delhi.

4. On July 13, 1990 at 6.20 A.M. sister Floreena, principal of St. Mary’s School lodged First Information Report at Police Station Gajraula wherein she stated that she was living in the school campus along with her staff. On the night between July 12/13,1990 at about 2.00 A.M. three miscreants entered the premises through the kitchen by breaking-open the window. They were not of fair colour and were aged round about 20/24-30 years. All of them were of blackish complexion and were wearing under-wears. Third person who appeared to be a gang-leader, was wearing underpant and baniyan. The miscreants man-handled the maid servant and snatched her ear-rings and wrist watch. Thereafter all the miscreants went into the room where staff sisters Tara, Tessey, Anjla, Nisha, Roslit and Mamta were sleeping. The sisters were threatened at the point of knife, iron-bar and sticks. The sisters were made to sit in the room and one of the miscreants kept on standing outside the door with some iron implements. The accused who was leader of the gang took sister Tara to another room by force and committed rape on her. On making hue and cry, the sisters were given beating and were threatened to be killed. The miscreant who was standing outside the door took sister Roslit by force to the adjoining room and committed rape on her. All the three miscreants assaulted sister Mamta, Anjali and other sisters. They ran-sacked the house and looted Rs. 1,11,000/- by breaking the almirah. The cash was kept for disbursing the salaries of the staff and for payment to the book-seller.

5. The Senior Superintendent of Police in his counter-affidavit has stated that accused Iqbal was arrested by the police on July 24, 1990 and by August 2, 1990 four accused persons namely, Sampat Lal, Iqbal, Jamil and Babu had been arrested. He further stated in his affidavit as under:

Two wrist watches were recovered from Babu and one wrist watch was recovered from Jameel in the presence of public witnesses namely Deep Chand and Jai Karan. The victims Nun Floreena Tessey, Elsy, Sister Rinci, Nisha, Anjali and maid servant had also arrived at the time of recovery of the stolen property, and recognised the accused persons arrested by the police and the recovered wrist watches.

6. The charge-sheet against the accused persons, according to the Senior Superintendent of Police has been filed in the Court on August 10, 1990. Regarding the identification of the accused persons before the Magistrate, Senior Superintendent of Police has stated as under:

About 7 dates from 27.8.90 to 1.10.90 were given to the sisters to attend the identification parade of the accused persons in jail to identify them as well as to identify the wrist watches before the Magistrate. They have however failed to identify the accused and the stolen property before Magistrate.

7. The second Petitioner Paulose Vellakunnath who is a catholic priest has filed rejoinder affidavit to the counter affidavit filed by Senior Superintendent of Police, Muradabad. In para 7 of the rejoinder it is stated as under:

The arrest of four persons instead of three criminals who committed the crime is a travesty of justice. For Rev. Sisters stated that the four arrested persons Iqbal, Sammarbal, Jameel and Babu were not the real culprits. Rev. Sisters disowned the watches and disclaimed the watches alleged to have been seized by the police from Iqbal and others. Despite this the police asked Rev. Sisters to accept the four arrested persons as real culprits and get them convicted. The fact is that the real culprits were two men and one adolescent.

8. Mr. Subash Kajala the then Station House Officer, Police Station, Gajraula filed his affidavit in this Court on October 11, 1991. He has repeated what the Senior Superintendent, Police has already stated in his affidavit. He has also mentioned that the trial is pending in the court of IXth Additional Sessions Judge, Muradabad wherein the charge was to be framed against the accused persons on October 24,1991.

9. It is not necessary for us to go into various facts and circumstances mentioned by the petitioners in the writ petition in support of their apprehensions that the investigation in the case by the police was not fair and the victims are not likely to get justice by the authorities in the State of Uttar Pradesh. Four accused persons have been arrested in connection with the crime and the trial against them is likely to commence. The investigation having been completed by the police and charge-sheet submitted to the court, it is not for, ordinarily, to re-open the investigation specially by entrusting the same to a specialised agency like CBI. We are also conscious that of-late the demand for CBI-investigation even in police cases is on the increase. Nevertheless – in a given situation, to do justice between the parties and to instill confidence in the public mind–it may become necessary to ask the CBI to investigate a crime. It only shows the efficiency and the independence of the agency.

10. It is obvious from the affidavit of the Senior Superintendent of Police that the Nuns who are victims of the tragedy are not coming forward to identify the culprits in an identification parade to be held by the Magistrate. The petitioners on the other hand, have alleged that the four persons who have been set up as accused by the police arc not the real culprits and the police is asking the Sisters to accept the four arrested persons as culprits. In the face of these averments and keeping in view the facts and circumstances of this case, we are of the view that ends of justice would be met if we direct the CBI to hold further investigation in respect of the offences committed between the night of July 12 and 13, 1990 as per the FIR lodged at Police Station, Gajraula.

11. We are, however, not inclined to accept the prayer of the petitioners to transfer the criminal case from the file of IXth Additional Sessions Judge, Muradabad.

12. We, therefore, direct the CBI to take up the investigation of the case immediately. We further direct the Senior Superintendent of Police, Muradabad and the Station House Officer, Gajraula Police Station to assist the CBI in conducting the investigation. The State of Uttar Pradesh through its Chief Secretary and the Home Secretary is further directed to provide all assistance to the CBI in this respect.

13. The CBI shall complete the investigation within three months from today and submit its report in accordance with law. The proceedings before IXth Additional Sessions Judge, Muradabad shall remain stayed till March 16, 1992.

14. The writ petition is, thus, disposed of.

Categories: further investigation

SC: The prayer for further investigation is rejected, However, the investigating authority shall conduct Brain Mapping/Brain Finger Printing Test of the petitioner-accused

http://indiankanoon.org/doc/1702244/

Dr. Purshottam Swaroopchand Soni vs The State Of Gujarat on 5 April, 2007
Equivalent citations: (2007) 2 GLR 2088
Author: K Jhaveri
Bench: K Jhaveri

JUDGMENT

K.S. Jhaveri, J.

1. The petitioner has prayed to quash and set aside the judgement and order dated 3rd June 2006 passed below Exhibit 41 in Sessions Case No. 160 of 2002 by the Additional Sessions Judge, Viramgam and to direct that further investigation be made by an independent agency unconnected with present investigation machinery to conduct Brain Mapping/Brain Finger Printing Test of the accused.

2. The petitioner had lodged First Information Report being C.R. No. I 30 of 2002 with Mandal Police Station in connection with the murder of his wife on 25th June 2002. During the course of investigation the petitioner came to be arrested in connection with the said complaint on 30th June 2002.

2.1 According to the Investigating Officers, the petitioner has taken the officers to the place where allegedly he had hidden his clothes and weapon of the crime. According to the investigating agency, they have recovered ‘Surgical Blade’ and ‘bloodstained clothes of the accused’. However, according to the petitioner, the recovery of the said articles were not made at the instance of the petitioner and according to the Panchnama, the weapon which was recovered after 8 days of the incident had fresh bloodstains on it. Therefore, according to the petitioner, the aforesaid Panchnama is false and the petitioner has been framed in the matter.

2.2 In view of the above, the petitioner has submitted an application Exhibit 41 before the Sessions Judge, Viramgam, praying for further investigation in the matter and for an order that he may be subjected to brain mapping test by an independent investigating agency unconnected with the present investigating agency. The Additional Sessions Judge, Viramgam, rejected the said application by order dated 3rd June 2006 against which the present petition has been filed.

3. Mr. S.V. Raju, learned Advocate for the petitioner submitted that the so-called discovery made at the instance of the petitioner is not actually made at the instance of the petitioner and the whole factum of the discovery is fabricated by the investigating agency. He submitted that this contention is supported by the fact that the alleged discovery of ‘Surgical Blade’ was made after about eight days from the date of incident, but according to the Panchnama, it is having fresh bloodstains. However, no investigation has been made with regard to fresh bloodstains by the investigating agency.

3.1 He further submitted that the Sessions Court has erroneously rejected the application for Brain Mapping test on the ground that it would delay the trial. Mr. Raju further submitted that the petitioner is facing serious charge of offence of murder which is punishable with capital punishment and since the petitioner is innocent, in order to establish his innocence, Brain Mapping Test/Brain Finger Printing Test would be necessary.

3.2 Mr. Raju submitted that in the present case it is the case of the accused that he has been falsely involved in the matter to save a sitting Minister/her relative. It is his case that a false case of discovery/recovery has been made out after a lapse of almost 10 days. According to him the entire case is based on circumstantial evidence and there is no eye-witness to the incident of murder. He submitted that there is no direct evidence against the accused involving him in the alleged murder and since a sitting Minister is involved, the police have conducted a biased investigation with the sole purpose of saving the Minister and falsely implicating the petitioner.

3.3 He further submitted that the prosecution was not sure of its position and therefore had asked for a lie-detection test at the stage of investigation and though the accused had very early, while in jail, requested for a lie-detection test, the same was not carried out only with a view to save important personalities whom the prosecution wants to protect.

3.4 Mr. Raju has relied upon a decision in the case of Hasanbhai Walibhai Qureshi v. State of Gujarat

wherein the Apex Court held that, coming to the question whether a further investigation is warranted, the hands of investigating agency or the court should not be tied down on the ground that further investigation may delay the trial, as the ultimate object is to arrive at the truth.

3.5 Mr. Raju has submitted that it is the fundamental right conferred on every person, including an accused to have a fair and open trial. In this regard he has relied upon a decision of the Apex Court in the case of T.C. Pathak v. State of U.P. and Ors. .

He further submitted that the Apex Court has also held that under the right conferred by Article 21 of the Constitution of India, if the liberty of a person is deprived otherwise according to the procedure established by law, then the Court should interfere.

3.6 Mr. Raju has relied upon the decisions in the cases of Maneka Gandhi v. Union of India , Ranjitsing

Brahmajeetsing Sharma v. State of Maharashtra and Francis Coralie Mullin v. Administrator, U.T. of Delhi wherein the Apex Court has

interpreted the expression ‘procedure established by law’ to mean a procedure which should not be arbitrary, unfair or unreasonable.

3.6 Mr. Raju has next relied upon a decision in the case of S.N. Dube v. N.B. Bhoir reported in 2000(2) GLH 420, wherein also the Apex Court has ordered for further investigation.

4. Mr. Sunit Shah, learned Government Pleader appearing for the respondent-State submitted that the application for Brain Mapping Test was given only with a view to kill time so that the Sessions Case pending before the Viramgam Sessions Court cannot proceed.

4.1 He submitted that the investigation sought for is not for further investigation, but it is for reinvestigation or for fresh investigation which cannot be allowed. He submitted that the powers of the further investigation are with only the investigating agency and that too for further investigation so that it can collect more evidence.

4.2 Mr. Shah submitted that reading of Section 173(8) of Cr.P.C. makes it clear that the powers of the Court are for further investigation, but not for re-investigation or fresh investigation. According to him, the Sessions Judge has discussed the facts on record in detail and has rightly rejected the application of the petitioner by assigning cogent and convincing reasons.

4.3 He further submitted that the petitioner is not interested in facing trial and the application has been filed only for delaying the prosecution.

4.4 Mr. Shah further submitted that this petition has been filed after a period of four years showing his readiness for Brain Mapping Test and this is made only for prolonging the trial. He further submitted that brain mapping test can never be a defence and therefore such a request cannot be granted.

4.5 Mr. Sunit Shah submitted that the brother-in-law of the petitioner was star witness of the prosecution, but after the petitioner was released on bail, the brother-in-law has tendered an application for reinvestigation and has stated that his brother-in-law has not committed the murder and this itself goes to show that the petitioner has tampered with the witness. He therefore submitted that the present petition requires to be rejected.

5. Mr. Shah has relied upon a decision of the Apex Court in the case of Union of India v. Sushil Kumar wherein it

is held that once the chargesheet is filed, it is the trial court alone, which can call for further investigation if at all required and not the High Court or Supreme Court.

5.1 Mr. Shah has next relied upon a decision in the case of Sadi Thomas v. State in Appeal (Cri) 1211 of 2006 dated 24.11.2006 wherein the Apex Court has drawn a distinction between adjudicator”s function and the function of investigation and stated that it is the prerogative of the investigating authority as to how investigation is to be carried out and the Court”s power under adjudicators” function are very limited. In this context he has also relied upon a decision in the case of State of Bihar v. A.S. Saldana reported in 1980 SC 326.

5.2 Mr. Shah has also relied upon a decision of the Apex Court in the case of K. Chandrashekhar v. State of Kerala reported in 1998 SCC (Cri.) 1212 wherein the Apex Court pointed out distinction between further investigation and reinvestigation.

6. There is no dispute about the fact that the petitioner is disputing the contents of Panchnama and his case is that he has been framed in the present case. The alleged discovery of ‘Surgical Blade’ was made after about eight days from the date of incident. The Panchnama shows that it was having fresh bloodstains on it. However, no investigation has been made with regard to the said fresh bloodstains. Earlier brother-in-law of the petitioner had given statement alleging that the petitioner had committed murder of his sister i.e. wife of the petitioner. Thereafter he turned hostile and filed an application seeking further investigation under Section 173(8) of the Criminal Procedure Code before the Sessions Court at Viramgam. The said application came to be rejected. According to the prosecution, it was after the petitioner was released on bail the said witness has changed his version. However, there is nothing on record to show that the petitioner has in any manner influenced his brother-in-law to change his version, when earlier he categorically stated that the petitioner has committed murder of his sister. In such case two hypothetical conclusion can be arrived at. Either the petitioner has prevailed upon his brother-in-law or his brother-in-law must have reasonable belief that the petitioner has not committed the alleged offence. Therefore he has filed the application for further investigation.

6.1 However, the fact remains that the chargesheet has already been filed in the case. From the papers it appears that the Investigating Agency has recorded various statements and certain discovery was also made. Looking to the manner in which the investigation proceeded it cannot be said that there is complete failure of justice in the investigation. It is not for any Court to state as to how the investigation should be carried out. It is the prerogative of investigating authority as to how the investigation is to be carried out. Further, as regards the fresh bloodstains on the weapon, etc. are concerned, the same can be pointed out at the time of trial in the defence of the petitioner. Therefore, I am of the view that no case is made out for further investigation in the matter.

7. At this stage it is required to be noted that in the present case the petitioner is the accused. It is also important to note that the accused is demanding Brain Mapping Test/Brain Fingerprinting to prove his innocence. Brain Fingerprinting is based on the principle that the brain is central to all human acts. In a criminal act, there may not be many physical evidences at the crime scene, but the ‘brain’ is always there recording the sequences of the crime. The basic difference between a criminal and innocent person is that the criminal has the details of the crime stored in his brain, whereas the innocent does not. In brain fingerprinting testing, the subject is made to sit in a quiet room with sensors on his headband that measure electrical brain responses. Three types of stimuli: ‘targets’, ‘irrelevant’, and ‘probes’, in the form of words, pictures, or sounds are presented for a fraction of a second each, under computer control. Incoming stimulus that is significant and noteworthy results in a specific, electrical brain response, known as P-300, which is one aspect of a larger brain wave response known as MERMER (Memory and Encoding Related Multifaceted Electroencephalographic Response). However, determination of innocence or guilt is a legal entity rather than a scientific determination. The investigating agencies can take the results of ‘Brain Fingerprinting’ as an evidence along with all other available evidence to reach a verdict of guilty or not guilty. According to a study the accuracy rate of this test is 99.99 per cent and in USA, the FBI have been making use of this technique to convict criminals.

7.1 According to the petitioner he has been falsely involved in the case and he disputes recovery of weapon at his instance. It is also required to be noted that the petitioner is facing serious charge of offence of murder, which is punishable with capital punishment. The petitioner-accused himself volunteers for the Brain Mapping Test/Lie Detector Test. For a fair trial all possible evidence is required to be brought on record to decide whether the accused is guilty or not. Denying any opportunity to bring on record certain evidence on the ground that the trial will be delayed would amount to denying substantial justice to an accused especially when he is facing a murder trial. On the contrary, if the Lie Detector Test/Brain Mapping Test is allowed, and if it is presumed that the said test is in his favour, that will not exonerate the petitioner-accused. The evidence is required to be considered in their totality. It cannot be said that merely on Lie Detector Test/Brain Mapping Test the petitioner-accused will be acquitted even though other evidence against him are on record. Looking to the particular facts of the case, especially when the petitioner accused specifically pleaded for Brain Mapping Test, I am of the view that, such an opportunity cannot be denied on the ground that the trial will be delayed. It is also required to be noted that unless it is proved that the petitioner-accused is guilty, the presumption is always in his favour. Even if the Lie Detector Test/Brain Mapping Test is allowed, at the most it may happen that the trial may be delayed by a few days. Moreover, if the Test allowed, justice will be done to the petitioner and the prosecution can have no grievance about the test.

7.2 Under Article 21 of the Constitution of India, it is the fundamental right conferred on every person, including an accused to have a fair and open trial. The scope of Article 21 has received a liberal and expansive interpretation from time to time by the Apex Court and fair trial is the essence of the fundamental right conferred to every person under the Constitution. Under the right conferred by Article 21 of the Constitution of India, if the liberty of a person is deprived otherwise according to the procedure established by law, then the Court can interfere in the matter.

7.3 On the facts of the case, it is the case of the petitioner-accused that he has been falsely involved in the matter to save a sitting Minister/her relative. According to the petitioner a false case of discovery/recovery has been made out after a lapse of almost 10 days. Prima facie it appears that the entire case is based on circumstantial evidence and there is no eye witness to the incident of murder. It is also true that there is no direct evidence against the accused involving him in the murder. The petitioner had earlier requested for lie-detection test at the stage of investigation, but the same was not carried out.

7.4 It is required to be noted that the right of the accused to give evidence to prove his innocence not only flows from the principles of natural justice, which is now held to be a part of Article 14/21 of the Constitution of India, but also under Section 315 of the Code of Criminal Procedure. Giving of evidence cannot be restricted only to giving of oral testimony in Court. In this century, electronic usage has been accepted in judicial dispensation. I am of the view that in a matter where it is the case of the accused that he is falsely involved, he should be permitted to give evidence in any form whether it be in the form of oral deposition before the Court or in the form of scientific nature like that of Brain-mapping test. To deprive the accused of such a right would tantamount to violation of his fundamental rights.

7.5 It is also required to be noted that undue interest has been taken in the matter by the State. A special Senior Prosecutor has been appointed in the matter. Umpteen number of affidavits and documents were placed on record. The request for brain-mapping test has been objected by tooth and nail. Admittedly the prosecution has failed to show any prejudice being caused in case of Brain-mapping test is allowed. The fact that the State opposes the Brain-mapping test raises doubt about the conduct of prosecution.

7.6 A contention has been raised that if this application is allowed, it would encourage number of persons to file similar applications. However, it is a well known fact that very few accused resort to this provision and give evidence. It cannot be presumed that the brain-mapping test would be in favour of the accused. In fact a guilty accused would be wary of allowing himself to undergo brain-mapping because it would prove his guilt. Another aspect is the fact that the entire purpose of criminal law and prosecution is to find out the truth and if for the purpose of finding out the truth, brain-mapping is resorted to, the so-called apprehension cannot come in the way of the ultimate aim of finding out the truth.

7.6 According to the respondent, the brain-mapping is only a psychological test and is not an evidence. This argument cannot be accepted. In the recent past in number of cases brain-mapping test has been carried out. As to whether the results of brain-mapping test can be treated as evidence or what evidentiary value is to be given to such test is a matter to be decided by the trial court. However, the right to produce such evidence cannot be deprived merely because the prosecution at this stage believes that the evidence is inadmissible. The question is not of inadmissibility of evidence, but the question is of what weightage is to be given to the brain-mapping test, which is for the trial court to decide. I am of the view that on this ground such evidence cannot be prevented from coming on record.

7.7 It is also required to be noted that the respondent has failed to prove any prejudice which may be caused to it by the accused undergoing a brain-mapping test. On the contrary, if the brain-mapping test goes against the accused, it would support the prosecution case. It is also required to be noted that the prosecution itself at the initial stage had asked for a polygraph test which is a very raw test as compared to a brain-mapping test and despite the fact that the accused had written from the jail that he wants his polygraph or lie-detection test, the same was not conducted and no reasons are forthcoming for not doing so. It is also required to be noted that there is no substance in the argument that it would delay the trial. The application for brain-mapping has been given much before the trial has begun. Even from the jail in the year 2002 the petitioner-accused had asked for a lie-detection test which was not carried out. I am therefore of the opinion that if a brain-mapping test is allowed, no prejudice is likely to be caused to the prosecution.

8. In the premises the petition is partly allowed. The prayer for further investigation is rejected. However, the investigating authority shall conduct Brain Mapping/Brain Finger Printing Test of the petitioner-accused as requested by the petitioner as expeditiously as possible. Rule is made absolute to the aforesaid extent. D.S. permitted.

Categories: further investigation