TMI Blog1997 (11) TMI 542X X X X Extracts X X X X X X X X Extracts X X X X ..... f of Mukhatar Ansari and Stated that the applicants Lalji Yadav and others have no objection if Mukhtar Ansari is impleaded as petitioner No. 3, with them and he was appearing on behalf of those applicants as well as on behalf of Mukhtar Ansari applicant also. In view of this development, the application was allowed and Mukhtar Ansari was permitted to be impleaded as petitioner No. 5. 3. Another application was filed on behalf of Mukhtar Ansari to the effect that he be treated to be in custody in the aforesaid case crime. No. 19 of 1997 and the Chief Judicial Magistrate, Ghazipur be directed to grant the remand during the pendency of the investigation under Section 167 Cr. P.C. It was orally prayed that the execution of 'B' warrant be stayed against him. This Court heard the matter and passed a detailed order on 9-9-1997 in which it was provided that if the accused applicant Mukhtar Ansari was required to be produced before the Chief Judicial Magistrate, Varanasi, adequate security arrangements should be provided to him and the applicant shall be sent by the Jail authorities under the protection of a force other than the local police in case the order was produced before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was also called upon to verify as to whether the C.B.I, is making an enquiry or investigation. 8. Vide order dated 3-9-1997 the Division Bench has observed in its order as under : Considering the facts and circumstances of the case, as has been detailed in our earlier order, we deem it desirable that this case should be investigated by C.B.I. Accordingly we direct that investigation in respect of Criminal Case No. 1997 under Section 364-A/366 I.P.C. P. S. Bhelupur, Varanasi, shall be conducted by C.B.I.... Shri Girdhar Nath has also stated that earlier before passing the order by the Division Bench the State Government had already referred the matter for investigation to the C.B.I. In view of the above quoted order of the Division Bench of this Court as well as the statement of Sri Girdhar Nath, it is clear that the matter is being investigated by the C.B.I 9. Although the prayer for allowing the amendment in the main petition has been made but the Court consideres it fit and the whole case be decided instead of deciding the application separately. It may be mentioned here that the applicant Mukhatar Ansari's prayer with regard to the stay of his arrest is also bei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emature stage. A counter affidavit has been filed by the C.B.I, by one Rajeev Chandola Inspector, C.B.I. S.I.C. IV New Delhi in which only this much has been stated that the investigation by the C.B.I, in the matter in question is at the initial stage and it will not be proper to express any definite opinion regarding the involvement of the applicant. It has also been stated that the applicant Mukhtar Ansari has already been released on bail in case crime No. 44 of 1991 under Section 302 I.P.C. Police Station Kotwali Ghazipur from the Court of District and Sessions Judge, Ghazipur on 19-9-1997 and this fact has resulted in making the application of Mukhtar Ansari infructuous. 12. Vide supplementary counter affidavit, the C.B.I. Inspector Rajeev Chandola has stated that the matter is still at the initial stage of investigation and any intervention or interference by this Court will hamper the investigation and defeat the purpose and power of investigating agency which has been provided under the Code of Criminal Procedure. 13. Learned counsel for the applicant Mukhtar Ansari Sri P. P. Srivastava, Senior Advocate has vehemently argued that if the investigation of the C.B.I, is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in which it has been held that the matter needs to be addressed by a body which can function with the highest degree of independence, being completely free from every conceivable influence and pressure. Such a body must possess the necessary powers to be able to direct investigation of all charges thouroughly before it decides, if at all, to launch prosecution, he has further referred to the case law reported in State represented by the C.B.I. v. Anil Sharma (1997) 7 SCC 187 : AIR 1997 SC 3806 in which the Hon'ble Supreme Court has held that in a case like this efective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed, Success in such interrogation would elude if the suspected person knows that he is well protected and isulated by a pre-arrest bail order during the time he is interogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third degree methods need not be countenanced, for, such an argument can be advanced by all accused in all c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udges Full Bench decision in the case of Ramlal Yadav v. State of U. P. 1989 Cri LJ 1013 and the remedy of the petitioners lies else where. It has also been contended that since only a F.I.R. has been lodged and investigation is going on, this Court should refrain itself from interfering under Section 482, Cr. P.C. on the question of maintainability Mr. P. P. Srivastava, learned Counsel cited certain rulings which are being discussed hereinbelow : 19. In Eastern spinning Mills Shri Virendra Kumar Sharda v. Shri Rajiv Podder AIR 1985 SC 1668 : 1985 Cri LJ 1858, the Hon'ble Supreme Court observed that we consider it absolutely un-necessary to make reference to the decision of this Court and they are legion which have laid down that save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not intefere at the stage of investigation. 20. In the matter of Janta Dal v. H. S. Chowdhary AIR 1993 SC 892 : 1993 Cri LJ 600 the Hon'ble Supreme Court has held at page 926 (of AIR): After the proposition of law enunciate by this Court in a series of decisions relating to exercise of the extra-ordinary powers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld always be kept in mind before embarking upon exercising inherent power.... 22. In the matter of State of Bihar v. Rajendra Agrawalla JT 1996 (1) SC 601 : 1996 Cri LJ 1372, the Hon'ble Supreme Court has held at page 1373 (of Cri LJ) : It has been held by this Court in several cases that the inherent power of the Court under Section 482 of the Code of Criminal Procedure should be very sparingly and cautiously used only when the court comes to the conclusion that there would be manifest injustice or there would be abuse of the process of the Court, if such power is not exercised. So far as the order of cognizance by a magistrate is concerned, the inherent power can be exercised when the allegations in the first information report or the complaint together with the other materials collected during investigation taken at their face value, do not constitute the offence alleged. At that stage it is not open for the court either to shift the evidence or appreciate the evidence and come to the conclusion that no prime facie case is made out. 23. In the matter of State of Uttar Pradesh v. O.P. Sharma JT 1996 (2) SC 488 : 1996 All LJ 601 the Hon'ble Supreme Court has held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... zir Ahamad's case (supra). It was observed in that case that the police had a statutory right under the Code of Criminal Procedure to investigate into the offence and the High Court should not interfere in exercise of its inherent power but, in this very judgment it was also held that if any cognizable offence was not disclosed or if no offence at all was indicated, the police would have no authority -to initiate an investigation and if it is done the High Court could interfere under its inherent power. 26. A r'esume' of what has been discussed above, it is held that the inherent power of this Court to pass orders to secure the ends of justice or to prevent the abuse of the process of Court is always there and a petition under Section 482 Cr. P.C. is maintainable but the court should exercise its powers very sparingly and cautiously in rarest of the rare case. If the individual case comes within the purview of the guidelines given by the Hon'ble Supreme Court in the case of State of Haryana v. Bhajan Lal AIR 1992 SC 604 : 1992 cri LJ 527. 27. Now coming to the merits of the instant case, the first information report lodged undisputedly constitutes a cognizable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d down by the Hon'ble Supreme Court in the case D.K. Basu v. State of West Bengal JT 1997 (1) SC 1 : AIR 1997 SC 610, the C.B. I. has not followed the norms laid down by the Hon'ble Supreme Court in that case. 32. At this stage it can not be said whether the intention of the C.B.I, is to arrest the applicant or for some other purpose the action is being taken and the learned Standing Counsel for the C.B.I. is also not in a position to say anything. 33. Considering the facts and circumstances of the case, it is directed that the directions issued in D. K. Basu's case (supra) specially in paragraph 36 shall be followed by the C.B.I. which are as under :- (1) The police personnel carrying out the ;arrest and handling the interrogation of the arrestee should bear accurate, visible and clear 'identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register. (2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by atleast one witness, who may be either a memb ..... X X X X Extracts X X X X X X X X Extracts X X X X
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