TMI Blog2022 (7) TMI 1457X X X X Extracts X X X X X X X X Extracts X X X X ..... aordinary power of the Court to transfer the investigation to CBI. Hence, in view of the aforesaid judicial pronouncement, it is not open to the appellant to raise a complaint against the direction of the learned Single Judge to constitute the SIT specially when no prejudice is shown to have been caused to the appellant on account of such a direction. The investigation is apparently delayed in the present case and Hon'ble Supreme Court in the matter of DILAWAR VERSUS THE STATE OF HARYANA AND ORS. [ 2018 (5) TMI 2152 - SUPREME COURT] has held that no investigating agency can take unduly long time in completing the investigation and that speedy investigation is recognized as a part of fundamental right of fair procedure under Article 21 of the Constitution. In the case of P.K. Palanisamy [ 2009 (7) TMI 1311 - SUPREME COURT ] well-settled principle of law has been reiterated and non-mentioning of a provision does not invalidate the order if the Court or statutory authority had a requisite jurisdiction therefor - In the present case there is no issue of invalidation of order passed by the Judicial Magistrate dated 06.05.2022. Even otherwise if the proceedings were taken u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further submits that even otherwise in respect of the grievance relating to improper investigation the writ petition was not maintainable and the appropriate remedy was to approach the Judicial Magistrate and in support of his submission he has placed reliance upon the judgment of the Hon'ble Supreme Court in the matter of Sakiri Vasu vs. State of Uttar Pradesh and Others reported in (2008) 2 SCC 409, in the matter of Sudhir Bhaskarrao Tambe vs. Hemant Yashwant Dhage and Others reported in (2016) 6 SCC 277 and in the matter of M. Subramaniam and Another vs. S. Janaki and Another reported in (2020) 16 SCC 728. He has further submitted that before the learned Single Judge, order of the Judicial Magistrate dated 06.05.2022 was not produced wherein learned Judicial Magistrate had recorded satisfaction about the investigation and the said order has not been dealt with by the learned Single Judge. He has also submitted that merely because in the application before the Judicial Magistrate, respondent No. 1 had not mentioned any provision of law that will not make any difference as the contents of the application reveal that it was an application under Section 156(3) of the Cr.P.C. an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... about 11 months after making seizure of the iPhone on 10.02.2022 notice was issued by the police to respondent No. 1 to provide the password which shows the inaction on the part of the police and the password was immediately provided on 22.02.2022. He also submits that the Advocates for the appellant had appeared before the learned Single Judge and were present at the time of argument but they did not mark their appearance. He also submits that the order of the Judicial Magistrate was duly brought to the notice of the learned Single Judge and that the order under challenge is only an interlocutory order. In support of his submission that victim also has a right of speedy trial, he has relied upon the judgment in the matter of Dilawar vs. State of Haryana and Another reported in (2018) 16 SCC 521. In support of his submission that accused has no right of choose investigating agency, he has also placed reliance in the matter of Union of India and Another vs. W.N. Chadha reported in 1993 Supp (4) SCC 260, in the matter of Romila Thapar and Others vs. Union of India and Others reported in 2018) 10 SCC 753. In support of his submission that Judicial Magistrate has limited power under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt No. 6 in the writ petition i.e. the investigating officer has been found to be lacking in experience and also having lack of adequate support and machinery. In the said background, learned Single Judge, considering the gravity of offences and the delay, had opined that the Special Investigation Team consisting of senior and experienced police officers should be constituted. It is worth noting that the respondent No. 6 is also a part of the SIT. Learned Single Judge has not transferred the investigation to any outside agency but the SIT is headed by the Special Commissioner of Police (II), Kolkata Police who has been directed to constitute her own team of competent officers to take over the investigation. 10. Hon'ble Supreme Court in the matter of W.N. Chadha (supra) in paragraph 92 has held that the accused has no right to have any say as regards the manner and method of investigation and also has no participation as a matter of right during the course of investigation of a case instituted on a police report till the investigation culminates in filing final report under Section 173(2) of the Code. 11. In the matter of Romila Thapar and Others (supra), the position of l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gation to CBI. 13. Hence, in view of the aforesaid judicial pronouncement, it is not open to the appellant to raise a complaint against the direction of the learned Single Judge to constitute the SIT specially when no prejudice is shown to have been caused to the appellant on account of such a direction. 14. The investigation is apparently delayed in the present case and Hon'ble Supreme Court in the matter of Dilawar (supra) has held that no investigating agency can take unduly long time in completing the investigation and that speedy investigation is recognized as a part of fundamental right of fair procedure under Article 21 of the Constitution. 15. So far as the arguments raised by the learned Counsel for the appellant that the respondent No. 1 had already availed the remedy under Section 156(3) of the Cr.P.C., therefore, writ cannot be maintained, we find that under Section 156(3) of the Cr.P.C. Judicial Magistrate does not have power to constitute SIT. The Hon'ble Supreme Court in the matter of Chandra Babu Alias Moses (supra) in paragraph 21 has taken note of the wider power of the superior Court to direct further, fresh, de novo investigation etc. under Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X
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