Sanjeev Sirohi, Advocate
Published on: 02 May 2023 at 20:07 IST
While making no bones in putting across its point in the most effective manner, the Apex Court in a most learned, laudable, logical, landmark and latest judgment titled Bohatie Devi (Dead) Through LR v. The State of Uttar Pradesh & Ors in Criminal Appeal No. 1294 of 2023 (@SLP (Crl) No. 4394/2021 With Criminal Appeal No. 1295 of 2023 (@SLP (Crl) No. 77708/2021) that was pronounced as recently as on April 28, 2023 has made it indubitably clear that Section 173(3) read with Section 158 of CrPC does not permit the Secretary (Home) to order for further investigation or reinvestigation by another agency other than the officer in charge of the concerned Police Station and/or his superior officer.
This definitely needs to be complied with. The order passed by the Secretary (Home) transferring the investigation/ordering further investigation by another agency and that too on the basis of the application/complaint submitted by mother of the accused is unknown to law.
In any case, as it is a case of reinvestigation, the same is not permissible and that too by another agency without the prior permission of the learned Magistrate even while exercising the powers under Section 173(8) of the CrPC (Para 7.1, 7.3).
At the very outset, this remarkable, robust, rational and recent judgment authored by Hon’ble Mr Justice MR Shah for a Bench of the Apex Court comprising of himself and Hon’ble Mr Justice CT Ravikumar sets the ball in motion by first and foremost putting forth in para 1 that, “Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court of Allahabad in Criminal Misc. Writ Petition No. 7093/2019, by which, the High Court has dismissed the said writ petition preferred by the appellant herein – mother of the deceased – Satyveer alias Kallu, in which, the appellant challenged order dated 13.02.2019 passed by the Secretary (Home), State of UP, Lucknow, whereby he ordered for further investigation by CBCID of Case Crime No. 1069/2014, the original writ petitioner has preferred the present appeal.”
To put things in perspective, the Bench then envisages in para 2 while dwelling on the facts stating that, “The facts leading to the present appeal in a nutshell are as under: –
2.1 That son of the appellant – Satyaveer @ Kallu was murdered by un-known persons. An FIR was lodged by the informant Sanjeev son-in-law of the appellant against Smt. Anju and two un-known persons. The investigation was carried out by the Inspector of Police, Baraut, District Baghpat who submitted chargesheet on 01.03.2015 against two persons of which cognizance was taken by the learned Magistrate on 31.03.2015.
That thereafter, on the complaint/application by the appellant, the investigation was handed over to the District Crime Branch. A supplementary chargesheet was filed on 02.12.2016 against one Ashwani Kumar – respondent No. 8 herein (son of respondent No. 9 herein) and Smt. Anju – respondent No. 11 herein.
The learned Magistrate took cognizance of the same on 21.12.2016. That thereafter, respondent No. 8, namely, Ashwani Kumar filed the quashing petition before the High Court for quashing of the entire criminal proceedings of Case No. 7626/2016 originating out of Case Crime No. 1069/2014 as well as for quashing of the chargesheet dated 02.12.2016.
The said application came to be dismissed by the High Court on 05.07.2017. Being aggrieved of order dated 05.07.2017, respondent No. 8 – Ashwani Kumar approached this Court by way of Special Leave Petition (Crl) No. 599/2017 which was dismissed by this Court on 24.08.2018. This Court also vacated the interim protection granted to respondent No. 8 vide order dated 15.09.2017.
The learned CJM, Baghpat issued non-bailable warrant against respondent No. 8 vide order dated 08.09.2018. That thereafter and after nonbailable warrant was issued against respondent No. 8 herein, mother of Ashwani Kumar – accused moved an application dated 23.01.2019 to the Secretary (Home), State of Uttar Pradesh for transferring the investigation to CBCID, inter-alia, on the ground that respondent No. 8 has been arraigned as accused on the basis of statements of two witnesses who in fact were in the Jail and therefore, their statements cannot be believed.
That by order dated 13.02.2019, Secretary (Home) State of U.P., Lucknow, ordered further investigation by CBCID. The order passed by the Secretary (Home) transferring investigation to CBCID was impugned before the High Court by way of present petition. By the impugned judgment and order the High Court has dismissed the writ petition by observing that further investigation was ordered after intimation to the learned Magistrate and therefore, there is no infirmity in the order passed by the Secretary (Home) directing further investigation. The impugned judgment and order passed by the High Court is the subject matter of present appeal.”
As it turned out, the Bench then enunciates in para 7 that, “At the outset, it is required to be noted that respondent Nos. 8 and 11 as such have been chargesheeted for the offence under Sections 302 and 120B of the IPC of which the cognizance has been taken by the learned Magistrate on 21.12.2016. That thereafter, respondent No. 8 as such moved the quashing petition before the High Court for quashing the entire criminal proceedings including the chargesheet/supplementary chargesheet,”.
“The High Court dismissed the quashing petition. Therefore, the accused must have taken all the defences which might have been available to him while considering quashing petition including the ground on which now further investigation/reinvestigation is ordered by another agency, namely, CBCID. It is required to be noted that thereafter, respondent No. 8 approached this Court and the Special Leave Petition came to be dismissed by this Court and the interim protection in favour of respondent No. 8 came to be vacated,”.
“That thereafter, non-bailable warrant was issued against respondent No. 8 and only thereafter, mother of respondent No. 8 – accused moved an application before the Secretary (Home) for further investigation and he transferred the investigation to CBCID, inter-alia, on the ground that the so-called eye witnesses of the murder were not the eye witnesses,”.
“The request of the mother of accused has been accepted by the Secretary (Home) and the investigation was transferred to another agency, namely, CBCID despite the fact that after the first chargesheet, the investigation was handed over to the District Crime Branch to further investigate the case and they filed the supplementary chargesheet in which respondent Nos. 8 and 11 were even chargesheeted. Therefore, as such it is not a case of further investigation, but is a case of reinvestigation by another agency. The order passed by the Secretary (Home) transferring the investigation/ordering further investigation by another agency and that too, on the basis of the application/complaint submitted by mother of the accused is unknown to law.”
Needless to say, the Bench then points out in para 7.1 that, “There cannot be any dispute that even after the chargesheet is filed, it is the right of the investigating officer to further investigate in respect of offence even after a report under sub-section (2) of Section 173 of Cr.PC forwarded to a Magistrate and as observed and held by this Court the prior approval of the Magistrate is not required,”.
“However, as per the settled position of law, so far as the reinvestigation is concerned, the prior permission/approval of the Magistrate is required. In the present case, the Secretary (Home) has passed an order for further investigation by CBCID and thereafter, the CBCID has sent the intimation to the learned Magistrate. No prior approval/permission as observed by the High Court has been accorded by the learned Magistrate. The High Court in the impugned judgment and order has observed that the further investigation is ordered with the concurrence of the Magistrate, which is factually incorrect. What is on record is only an intimation to the learned Magistrate which in any case cannot be said to be concurrence of the learned Magistrate.”
Most forthrightly and most remarkably, the Bench mandates in para 7.2 that, “In any case, as it is a case of reinvestigation, the same is not permissible and that too by another agency without the prior permission of the learned Magistrate even while exercising the powers under Section 173(8) of the Cr.PC. Under what authority of law, the Secretary (Home) has transferred the investigation to another agency and/or ordered further investigation by another agency is not pointed out and that too at the instance of the accused on the grounds which as such can be said to be the defences of the accused which are required to be considered at the time of trial,”.
“The case on behalf of the accused that as the Secretary (Home) is the head of the department and the further investigation was ordered by another agency on administrative side and therefore, the Secretary (Home) is justified in ordering further investigation by CBCID cannot be accepted,”.
“So far as the investigation is concerned under the scheme of the Cr.PC, the Police Officer of the concerned Police Station, who is the investigating officer, has to investigate/further investigate the case under the supervision of Superintendent of Police. So far as the Secretary (Home) is concerned, he does not come into picture at all. If such powers are given to the Secretary (Home) in that case any accused who is already chargesheeted may approach the Secretary (Home) and may get an order of further investigation or reinvestigation by another agency and obtain the fresh report nullifying the earlier chargesheet and get himself discharged,”.
“If the accused is aggrieved by the chargesheet in that case, the remedy available to him would be either to file the quashing petition under Section 482 of Cr.PC and/or to move an appropriate application for discharge before the learned Magistrate and it is for the High Court and/or the learned Magistrate as the case may be, to quash criminal proceedings or discharge the accused. The Secretary (Home) and/or any accused who is already chargesheeted cannot be permitted to circumvent such provision. It is to be noted that in the present case, respondent No. 8 – accused earlier did file the quashing petition, but failed.”
Most significantly, the Bench then holds in para 7.3 that, “Now, so far as the submission on behalf of the accused relying upon Section 173(3) of Cr.PC is concerned, it provides how to submit/send a report to the Magistrate and who shall send the report to the Magistrate,”.
“It provides that where a superior officer of police has been appointed under Section 158, the report, shall be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer in charge of the police station to make further investigation,”.
“Therefore, Section 173(3) read with Section 158 does not permit the Secretary (Home) to order for further investigation/reinvestigation by another agency, other than the officer in charge of the concerned Police Station and/or his superior officer.”
Finally, the Bench then concludes by holding in para 8 that, “In view of the above and for the reasons stated above, the present appeal succeeds. The impugned judgment and order passed by the High Court is hereby quashed and set aside. Consequently, order dated 13.02.2019 passed by the Secretary (Home) impugned before the High Court, by which, the Secretary (Home), State of U.P., Lucknow ordered for reinvestigation by CBCID of Case Crime No. 1069/2014 under Sections 302 and 120B of IPC, Police Station Baraut, District, is hereby quashed and set aside,”.
“Consequently, further investigation /reinvestigation by the CBCID is also hereby quashed and set aside. However, it is observed that all the defences which may be available to the accused are to be considered by the learned Trial Court at the time of trial. Present appeal is accordingly allowed,”.
“As we have allowed Criminal Appeal arising out of SLP (Crl.) No. 4394/2021 filed by the mother of the deceased (now dead through LR), connected Criminal Appeal arising out of SLP (Crl.) No. 7708/2021 filed by original accused Nos. 6 and 7 against issuance of non-bailable warrants against them stands dismissed.”
All told, the picture is now very pretty clear before us after analyzing this notable judgment by the Apex Court. Of course, the Apex Court has made it crystal clear that Home Secretary cannot order further investigation or reinvestigation of case by another agency other than the officer in charge of the concerned police station and/or his superior officer.