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TMI Blog2016 (1) TMI 1460X X X X Extracts X X X X X X X X Extracts X X X X ..... investigation and the frustration of a victim gets more aggravated when he is impecunious, and mentally shattered owing to the situation he is in and thereby knows not where to go, the anguish takes the character of collective agony. When the investigation, as perceived by him, is nothing but an apology for the same and mirrors before him the world of disillusionment that gives rise to the scuffle between the majesty and sanctity of law on one hand and its abuses on the other, he is constrained to seek intervention of the superior courts putting forth a case that his cry is not motivated but an expression of collective mortification and the intention is that justice should not be attenuated. 3. Justice, which is "truth in action" and "the firm and continuous desire to render to everyone which in his due" becomes a mirage for the victim and being perturbed he knocks at the doors of the High Court Under Article 226 of the Constitution alleging that principle of fair and proper investigation has been comatosed by the investigating agency, for the said agency has crucified the concept of faith in the investigation which is expected to maintain loyalty to law and sustain fidelity to i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant and his daughter were examined and on that basis, offence Under Section 376 Indian Penal Code was added. Eventually, the allegations were segregated and FIR No. 394 dated 20.09.2012 Under Sections 363, 365, 376(2)G, 506, 201 and 120-B Indian Penal Code and Section 3 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 was registered and after the investigation, a charge-sheet was filed. Be it stated, the accused persons in FIR No. 394 dated 20.09.2012 have been acquitted by the judgment dated 12.03.2014 by the learned Sessions Judge. Against the judgment of acquittal, the Appellant has filed a criminal appeal which is pending before the High Court of Punjab and Haryana. Therefore, we shall refrain from referring to the facts of the said case. 6. Coming to the subject matter of FIR No. 354 which relates to the murder of the wife of the Appellant, as is evident, the report would show that the cause of death was due to strangulation coupled with head injury which is antemortem in nature and sufficient to cause death in ordinary course. Apart from the accused persons named in the FIR, another person, namely, Krishan Kumar, was also implicated w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of West Bengal and Ors. v. Committee for Protection of Democratic Rights, West Bengal and Ors. (2010) 3 SCC 571. 9. Learned Counsel for the State has supported the order passed by the High Court and also emphasized that regard being had to the stage of the trial, there is no need for directing for investigation by another agency. 10. First, we intend to deal with the stand of the CBI and the principles laid down in Committee for Protection of Democratic Rights (supra). In the said case, the Constitution Bench, after examining the rival contentions in the context of the constitutional scheme, recorded the following conclusions: (i) The fundamental rights, enshrined in Part III of the Constitution, are inherent and cannot be extinguished by any constitutional or statutory provision. Any law that abrogates or abridges such rights would be violative of the basic structure doctrine. The actual effect and impact of the law on the rights guaranteed under Part III has to be taken into account in determining whether or not it destroys the basic structure. (ii) Article 21 of the Constitution in its broad perspective seeks to protect the persons of their lives and personal liberties exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... striction on the executive by Parliament under an enactment, do not amount to restriction on the power of the Judiciary Under Articles 32 and 226 of the Constitution. (vi) If in terms of Entry 2 of List II of the Seventh Schedule on the one hand and Entry 2-A and Entry 80 of List I on the other, an investigation by another agency is permissible subject to grant of consent by the State concerned, there is no reason as to why, in an exceptional situation, the Court would be precluded from exercising the same power which the Union could exercise in terms of the provisions of the statute. In our opinion, exercise of such power by the constitutional courts would not violate the doctrine of separation of powers. In fact, if in such a situation the Court fails to grant relief, it would be failing in its constitutional duty. (vii) When the Special Police Act itself provides that subject to the consent by the State, CBI can take up investigation in relation to the crime which was otherwise within the jurisdiction of the State police, the Court can also exercise its constitutional power of judicial review and direct CBI to take up the investigation within the jurisdiction of the State. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , to bring home the guilt of the accused before the competent court and in accordance with the direction given by the Court further investigation had been carried out in accordance with Section 173(8) of the Code of Criminal Procedure and, therefore, the jurisdiction of this Court Under Article 32 of the Constitution had come to an end. In essence, the submission was that when a charge-sheet was filed after conducting the investigation under the supervision and monitoring of the Court, there was no need to transfer the case to another agency. Repelling the said submission, the larger Bench opined, regard being had to the nature of the crime and the persons involved, the investigation could not be said to be satisfactorily held. That apart, the Constitution Bench also ruled that in the circumstances it was not sufficient to instill confidence in the minds of the victims as well as the public at large that State should be allowed to continue the investigation when the alleged offences were against its officials. Under these circumstances, the Court directed the CBI to take up the investigation and submit a report. 13. On a perusal of the said authority, we really do not find any asp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l there was a request by the Additional Chief Secretary for handing over the investigation to the CBI; that departmental action was taken against the investigating authorities for negligent investigation; that the concerned ASI has been reverted to the post of Head Constable; and that apart, certain material witnesses have not been examined by the investigating agency without any rhyme or reason. The reasoning of the High Court is as the trial has commenced, there cannot be a transfer of the case to another investigating agency. 17. In this context, we may notice the statutory scheme pertaining to investigation. Section 173 Code of Criminal Procedure empowers the Police Officer conducting investigation to file a report on completion of the investigation with the Magistrate empowered to take cognizance of the offence. Section 173(8) Code of Criminal Procedure empowers the office-in-charge to conduct further investigation even after filing of a report Under Section 173(2) Code of Criminal Procedure if he obtains further evidence, oral or documentary. Thus, the power of the Police Officer Under Section 173(8) Code of Criminal Procedure is unrestricted. Needless to say, the Magistrate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for further investigation or investigation by some other investigating agency. The purpose is, there has to be a fair investigation and a fair trial. The fair trial may be quite difficult unless there is a fair investigation. We are absolutely conscious that direction for further investigation by another agency has to be very sparingly issued but the facts depicted in this case compel us to exercise the said power. We are disposed to think that purpose of justice commands that the cause of the victim, the husband of the deceased, deserves to be answered so that miscarriage of justice is avoided. Therefore, in this case the stage of the case cannot be the governing factor. 21. We may further elucidate. The power to order fresh, de-novo or re-investigation being vested with the Constitutional Courts, the commencement of a trial and examination of some witnesses cannot be an absolute impediment for exercising the said constitutional power which is meant to ensure a fair and just investigation. It can never be forgotten that as the great ocean has only one test, the test of salt, so does justice has one flavour, the flavour of answering to the distress of the people without any discri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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