TMI Blog2023 (2) TMI 1193X X X X Extracts X X X X X X X X Extracts X X X X ..... mstances of the case, it is opined that the High Court has not committed any error in refusing to transfer the investigation to CBI. Even the learned Counsel appearing on behalf of the Appellant has not vehemently pressed such a prayer - the view taken by the High Court insofar as refusing to transfer the investigation to CBI is concerned completely agreed upon. Power of the Constitutional Courts to order further investigation/re-investigation/de novo investigation even after the chargesheet is filed and charges are framed - HELD THAT:- Applying the law laid down by this Court in the case of DHARAM PAL VERSUS STATE OF HARYANA AND ORS. [ 2016 (1) TMI 1460 - SUPREME COURT] and BHARATI TAMANG VERSUS UOI. ORS. [ 2013 (10) TMI 1297 - SUPREME COURT] and to do the complete justice and in furtherance of fair investigation and fair trial, the constitutional courts may order further investigation/re-investigation/de novo investigation even after the charge sheet is filed and the charges are framed. If the submission on behalf of the Accused and even as observed by the High Court that once the chargesheet is filed and the charges are framed, there may not be any order for further inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Court has dismissed the said writ petition preferred by the Appellant herein - the victim seeking transfer of the investigation to Central Bureau of Investigation or to any other agency to investigate/re-investigate the FIR Nos. 119 of 2020 and 120 of 2020 registered at Vartak Nagar Police Station, Thane, the original writ Petitioner - the victim has preferred the present appeal. 2. The facts leading to the present appeal and as per the case on behalf of the Appellant in nutshell are as under: 2.1. That the Appellant is a Civil Engineer, working as a consultant, shared on his Facebook account on 05.04.2020, a viral picture of one Mr. Jitendra Awhad, the then sitting Cabinet Minister of the State of Maharashtra (who is subsequently arrayed as Accused No. 13 after the High Court intervened), criticizing his act of ridiculing the Hon'ble Prime Minister of India. According to the Appellant, at around 11.50 pm at night on 05.04.2020, four Policemen, two dressed in Civilian Dress and other two in uniform came to his residence and forcibly took him to the Bungalow of the said Minister. According to the Appellant, thereafter, the Minister instructed his men to beat him and make ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the High Court and in view of the constant monitoring of the investigation by the High Court, the Minister Mr. Jitendra Awhad was added as Accused two years after the said incident. That thereafter during the pendency of the writ petition, the learned Trial Court framed the charges against the Accused on the basis of the chargesheets already filed, which according to the Appellant was for the lesser offences than the actually committed, like, Kidnapping, abducting and causing grievous hurt. That thereafter by the impugned judgment and order, the High Court has dismissed the said writ petition seeking transfer of the investigation to the CBI and/or any other agency by observing that after the investigation, the chargesheet is filed and the High Court prima facie opined that by filing the chargesheet/supplementary chargesheet, the investigating agency has conducted the investigation from all angles and after considering the medical report and even after collecting the CRD of the Mobile Phone and that once the charges have been framed by the Magistrate/Trial Court and therefore, it can be said that the trial has begun and therefore, thereafter, re-investigation/further investig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e an absolute impediment for exercising the said constitutional power, which is meant to ensure a fair and just investigation. 3.5. It is further submitted by Shri Jethmalani, learned Senior Counsel appearing on behalf of the Appellant that as observed and held by this Court in the case of Bharati Tamang v. Union of India and Ors., (2013) 15 SCC 578, in case of deficient/unsatisfactory investigation, it is the duty of the Courts to ensure effective conduct of prosecution and the Courts have powers to direct re-investigation in exceptional circumstances in case it warrants due to deficient/unsatisfactory investigation. 3.6. It is submitted that as observed and held in the said decision if deficiency in investigation or prosecution is visible or can be perceived by lifting the veil which try to hide the realities or covering the obvious deficiency, Courts have to deal with the same with an iron hand appropriately within the framework of law. It is submitted that it is further observed that it is the duty of the Court to ensure that full and material facts are brought on record so that there might not be miscarriage of justice. He has relied upon the observations made by this Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y record or document. It is submitted that the Appellant never alleged that he suffered a fracture due to injuries caused upon him. 5.3. It is submitted that the FIR registered by the Appellant on 06.04.2020 is completely silent about the injuries being grievous and any fracture being caused. It is submitted that the chargesheet filed by the Police also states that the Appellant was examined at Shivaji Hospital and the medical report was received intimating that the injuries caused are simple in nature. It is submitted that even the additional statement given by the Appellant to the Police on 10.04.2020 is also silent on the aspect of any fracture being caused or the injuries being grievous in nature. 5.4. It is further submitted that even the Hon'ble High Court in paras 16, 17 and 20 has categorically noted the fact that the Appellant failed to produce any medical certificate or document evidencing any fracture or injuries being grievous in nature and ruled that the injuries are simple in nature, which is evident from the medical report filed with the charge sheet. It is submitted that, therefore, there is no substance in the allegation that there are any lacunae on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. v. State of Chhattisgarh and Ors., (para 44 onwards). It is submitted that as observed and held by this Court in the case of State of West Bengal and Ors. v. Committee for Protection of Democratic Rights, West Bengal and Ors., (2010) 3 SCC 571, the power to transfer investigation must be exercised sparingly, cautiously and in exceptional situations. It is submitted that in the present case as on the basis of the chargesheet, the Trial Court has framed the charges, no exceptional case is made out to transfer the investigation to the C.B.I. now. 5.9. Now, so far as the change in its stand by the State, now, so taken in the counter affidavit filed before this Hon'ble Court is concerned, it is submitted that as such before the Hon'ble High Court, the State had defended the investigation throughout. It is submitted that just because the political dispensation in the State has changed, now, the State has filed an affidavit before this Hon'ble Court seeking further investigation in the matter without any substantial evidence and as such the same is impermissible in law. It is submitted that this Hon'ble Court has time and again held that the Governments change but th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ating the above submissions made on behalf of the respective parties, few decisions of this Court on the power of the Courts to transfer the investigation to another agency like CBI and the powers of the constitutional courts to order further investigation/re-investigation/de novo investigation are required to be referred to. 7.3. In the case of Himanshu Kumar and Ors. (supra), this Court had occasion to consider the power of the Court to transfer investigation to any other independent agency. After taking into consideration the catena of judgments on the point, it is reiterated that investigation may be transferred to the CBI only in rare and exceptional cases . In paragraphs 44 to 53, it is observed and held as under: 44. It is now settled law that if a citizen, who is a de facto complainant in a criminal case alleging commission of cognizable offence affecting violation of his legal or fundamental rights against high Government officials or influential persons, prays before a Court for a direction of investigation of the said alleged offence by the CBI, such prayer should not be granted on mere asking. A Constitution Bench of this Court, in the case of the State of West ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution of India qua the issuance of directions to the CBI to conduct investigation must be exercised with great caution as underlined by this Court in the case of Committee for Protection of Democratic Rights, West Bengal (supra) as adverted to herein above, observing that although no inflexible guidelines can be laid down in this regard, yet it was highlighted that such an order cannot be passed as a matter of routine or merely because the parties have levelled some allegations against the local police and can be invoked in exceptional situations where it becomes necessary to provide credibility and instill confidence in the investigation or where the incident may have national or international ramifications or where such an order may be necessary for doing complete justice and for enforcing the fundamental rights. We are conscious of the fact that though a satisfaction of want of proper, fair, impartial and effective investigation eroding its credence and reliability is the precondition for a direction for further investigation or re-investigation, submission of the charge sheet ipso facto or the pendency of the trial can, by no means, be a prohibitive impediment. The contextual f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c Rights, West Bengal (supra), that mere allegations against the police do not constitute a sufficient basis to transfer the investigation. 51. In Romila Thapar v. Union of India, (2018) 10 SCC 753, one of us, A.M. Khanwilkar, J., speaking for a three-Judge Bench of this Court (Dr. D.Y. Chandrachud, J. dissenting) noted the dictum in a line of precedents laying down the principle that the Accused does not have a say in the matter of appointment of investigating agency . In reiterating this principle, this Court relied upon its earlier decisions in Narmada Bai v. State of Gujarat, (2011) 5 SCC 79, Sanjiv Rajendra Bhatt v. Union of India, 2016) 1 SCC 1, E. Sivakumar v. Union of India, (2018) 7 SCC 365, and Divine Retreat Centre v. State of Kerala, (2008) 3 SCC 542. This Court observed: 30...the consistent view of this Court is that the Accused cannot ask for changing the investigating agency or to do investigation in a particular manner including for court-monitored investigation. 52. It has been held by this Court in CBI v. Rajesh Gandhi, 1997 Cri. LJ 63, that no one can insist that an offence be investigated by a particular agency. We fully agree with the view in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law. 41.4. It is as much the duty of the prosecutor as of the Court to ensure that full and material facts are brought on record so that there might not be miscarriage of justice. 41.5. In order to ensure that the criminal prosecution is carried on without any deficiency, in appropriate cases this Court can even constitute Special Investigation Team and also give appropriate directions to the Central and State Governments and other authorities to give all required assistance to such specially constituted investigating team in order to book the real culprits and for effective conduct of the prosecution. 41.6. While entrusting the criminal prosecution with other instrumentalities of State or by constituting a Special Investigation Team, the High Court or this Court can also monitor such investigation in order to ensure proper conduct of the prosecution. 41.7. In appropriate cases even if the charge-sheet is filed it is open for this Court or even for the High Court to direct investigation of the case to be handed over to CBI or to any other independent agency in order to do complete justice. 41.8. In exceptional circumstances the Court in order to prevent mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. Not for nothing it has been said that sun rises and sun sets, light and darkness, winter and spring come and go, even the course of time is playful but truth remains and sparkles when justice is done. It is the bounden duty of a court of law to uphold the truth and truth means absence of deceit, absence of fraud and in a criminal investigation a real and fair investigation, not an investigation that reveals itself as a sham one. It is not acceptable. It has to be kept uppermost in mind that impartial and truthful investigation is imperative. If there is indentation or concavity in the investigation, can the faith in investigation be regarded as the gospel truth? Will it have the sanctity or the purity of a genuine investigation? If a grave suspicion arises with regard to the investigation, should a constitutional court close its hands and accept the proposition that as the trial has commenced, the matter is beyond it? That is the tour de force of the prosecution and if we allow ourselves to say so it has become idee fixe but in our view the imperium of the constitutional courts cannot be stifled or smothered by bon mot or polemic. Of course, the suspicion must have some so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the power, subject, of course, to the Magistrate's nod Under Section 173(8) to further investigate an offence till charges are framed, but that the supervisory jurisdiction of the Magistrate suddenly ceases midway through the pre-trial proceedings, would amount to a travesty of justice, as certain cases may cry out for further investigation so that an innocent person is not wrongly arraigned as an Accused or that a prima facie guilty person is not so left out. There is no warrant for such a narrow and restrictive view of the powers of the Magistrate, particularly when such powers are traceable to Section 156(3) read with Section 156(1), Section 2(h) and Section 173(8) Code of Criminal Procedure, as has been noticed hereinabove, and would be available at all stages of the progress of a criminal case before the trial actually commences. It would also be in the interest of justice that this power be exercised suo motu by the Magistrate himself, depending on the facts of each case. Whether further investigation should or should not be ordered is within the discretion of the learned Magistrate who will exercise such discretion on the facts of each case and in accordance with law. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ple of law laid down hereinabove, it is required to be considered whether a case is made out for further investigation/fresh investigation/re-investigation/de novo investigation or not. 12.1. It is required to be noted that in the present case, the allegations in the FIR, right from very beginning, were against the Accused No. 13, who at the relevant time was the sitting Cabinet Minister occupying the high position. Even at the relevant time, when the State Police investigated the FIR bearing No. 120 of 2020, in the first chargesheet and the second chargesheet did not name the Accused No. 13. Even the investigation was also conducted in a perfunctory manner. The real investigation started only after the intervention of the High Court and after passing various orders in the present proceedings by the High Court. The allegations in the FIR were very serious including the misuse of powers by the sitting Cabinet Minister and of abducting, kidnapping and beating the complainant. The Appellant - original writ Petitioner filed the Criminal Writ Petition before the Bombay High Court on 17.04.2020 praying the investigation in FIR Nos. 119 of 2020 and 120 of 2020 to be transferred to an i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tigating agency, the further investigation is required. As observed and held by this Court in the aforesaid decisions, the victim has a fundamental right of fair investigation and fair trial. Therefore, mere filing of the chargesheet and framing of the charges cannot be an impediment in ordering further investigation/re-investigation/de novo investigation, if the facts so warrant. 13. Now, so far as the submission on behalf of the Accused that earlier the State through learned AG opposed the writ petition and submitted that there was a fair investigation and now with the change in power, the State agency has changed its stand is concerned, the Courts are not concerned with the stand taken by the State at the relevant time and now. Suffice it to say that at the relevant time when the State police agency took a particular stand, Accused No. 13 was in power and sitting Minister. The facts narrated hereinabove would suggest the manner in which the earlier investigation was carried out and that the Accused No. 13 was only chargesheeted in the second supplementary charge sheet in the month of March, 2022 and not prior to that when the first charge sheet was filed, the supplementary ch ..... X X X X Extracts X X X X X X X X Extracts X X X X
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