Case BriefsHigh Courts

High Court of Judicature of Madras: A Single Judge Bench comprising of M. S. Ramesh, J., recently addressed a petition that was filed under Section 482 Code of Criminal Procedure Code which prayed to the Court to direct the respondent Police to not harass the petitioners under the pretence of ongoing investigation/enquiry.

The Court acknowledged that Investigation Officers hold unfettered powers with respect to an enquiry into a non cognizable offence or a cognizable offence but it needs to be ensured that such powers are legitimately exercised. The Court observed that even though the Magistrate is empowered with the privileges of being a guardian in all stages of the police investigation, he’s still not handed over with powers which allow him to interfere with the actual investigation or the mode of investigation.

The Court held that its exercising of powers under Section 482 of the Criminal Procedure Code would not normally allow it to interfere with the investigation conducted by a police officer but, it would also not turn a blind eye to instances of harassment under the guise of investigation by the police. It also observed that what constitutes as “harassment” could fall under a broad ambit and hence, “harassment” in the words of the petitioners could be different from what the respondents thought to be “harassment”.

The Court issued the following guidelines to curb harassment from taking place while investigation was going on:

(i) When a person named in a complaint, or a witness needs to be summoned, the police officer shall present such a person with a written summon under Section 160 of the Criminal Procedure Code specifying the date and time for appearing before the enquiry;

(ii) The minutes of the enquiry shall be recorded in the general diary of the police station;

(iii) The Police Officers shall not indulge in harassing the persons being investigated.

[A. N. Lalman Lal v. State of Tamil Nadu, 2017 SCC OnLine Mad 10974, order dated 7.12.2017]

Case BriefsHigh Courts

Karnataka High Court: While deciding a criminal petition filed under Section 482 of CrPC, a Single Judge Bench comprising of Aravind Kumar, J. allowed the petition and quashed the proceedings pending against the petitioner on the file of Civil Judge.

A case was registered against the petitioner for the offences punishable under Sections 3(2B), 5(1), 5(D) 4 and 7 of the Immoral Traffic (Prevention) Act, 1956. Learned counsel for the petitioner contended that the filing of charge-sheet and conducting of investigation was by a person who was not competent to do so under the ITP Act, and such the proceedings against the petitioner may be quashed.

The High Court perused the record and submissions made by the parties and found that the charge-sheet was filed by a Sub-Inspector of Police. However, as per the mandate of Section 13(2) of the said Act, a ‘Special Police Officer’ cannot be below the rank of Inspector of Police. The Court was of the view that where the investigation had been conducted, completed and concluded by an officer who was not competent to do so, such proceedings were liable to be quashed.

Accordingly, the petition was allowed, the proceedings pending against the petitioner were quashed, and he was acquitted of the offences punishable under the abovesaid sections. [Rajeev K. v. State of Karnataka, Criminal Petition No. 6124 of 2017, order dated 16.10.2017]

Case BriefsHigh Courts

Karnataka High Court: While deciding a criminal petition filed under Section 482 of CrPC, a Single Judge Bench of Aravind Kumar, J. held that Section 155(2) CrPC clearly discloses that a Police Officer is not entitled to investigate a non-cognizable offence without the order of a Magistrate having power to try such an offence.

Petitioners were arrayed as accused in a criminal case for offences punishable under various sections of the Karnataka Police Act, 1963. The petitioners were seeking to quash the said proceedings against them contending, inter alia, that the same was in violation of Section 155(1) and (2)  CrPC.

Learned counsel for the petitioners contended that if the information relates to a non-cognizable offence than the Investigating Officer has to take permission of the jurisdictional Magistrate before proceeding to investigate the matter; and on account of such defect being large in the instant case, the prosecution launched against the petitioners was liable to be quashed.

The Court perused Section 155 CrPC and held that Section 155(2) CrPC clearly discloses that a Police Officer is not entitled to investigate a non-cognizable offence without the order of a Magistrate having power to try such an offence. However, the Court perused the approval granted by the jurisdictional Magistrate which disclosed that an application under Section 155(2) CrPC was made by the IO concerned seeking permission into the offence alleged against the petitioners. Accordingly, the petition was dismissed holding it to be sans merit. [Syed Shabeer v. State of Karnataka, Criminal Petition No. 2630 of 2017, decided on September 8, 2017]

Case BriefsHigh Courts

Punjab and Haryana High Court: The Court recently had to decide upon anticipatory bail application under Section 438 CrPC. The case was registered against the petitioner under Sections 420, 467, 468, 120-B IPC jointly by 46 persons (workers of Municipal corporation) for allegedly alluring them by promising to them falsely hope of obtaining permanent Class IV jobs in the Municipal Corporation, Amritsar, by taking amounts of money ranging from Rs.50,000/- to Rs.3,00,000/- per person for procuring permanent job openings.

The Court observed that the allegations on the petitioner were quite serious. The Court took note of another important fact that the petitioner was involved even in making of fake identity cards. For the allegations stated in the FIR, the Court thought it to be essential to refer the accused/petitioner for custodial interrogation and outrightly rejected his argument regarding inadmissibility of evidence specifically at such a nascent stage.

Rajiv Narayan Raina, J. went on to say that if he is granted the anticipatory bail, it would hinder the investigation by police as well as it’ll deprive them of the chances to recover the money of complainants and the forged documents which might further prove detrimental to the prosecution’s case.

The Court invoked the well-settled principle of law that the order of anticipatory bail cannot be allowed to circumvent normal procedure of arrest and effective investigation by the police. The Court further explained that the provision of anticipatory bail must not act as an in-road in the statutory investigation by the police. It being mindful of the difficulties that the investigating agency might have to face dismissed the petition. [Sukhwinder Singh @ Raju v. State of Punjab,  2017 SCC OnLine P&H 2205, decided on 06.07.2017]

Case BriefsHigh Courts

Madhya Pradesh High Court: The petitioner was an IAS officer appointed in 1982 and served in MP cadre from year 2000 to 2004 as an MD of a government company incorporated under Companies Act, 1956. The Corporation had been borrowing money from various sources to advance the same in the shape of inter corporate deposits to various companies in order to facilitate industrial development in the State of Madhya Pradesh. However, after some time, corporation suffered loss and after inquiry, it was observed that Directors, Managing Directors of the Corporation had not acted bona fide leading to losses in company.

An FIR was lodged in the same respect at State Economic Offices Investigation Bureau, Bhopal under Sections 409, 420, 467, 468 and 120-B  IPC. The petitioner challenged the registration of FIR against him under Section 482 CrPC.  The High Court in 2005 had quashed the FIR against which there was an appeal in Supreme Court. The appeal was allowed directing the Economic Offence Wing every mistake or error committed by an officer need not amount to a criminal act and that in the normal course of official duties mistakes may and do occur and that the petitioner be given reasonable opportunity of projecting his own views over the matter by furnishing all the documents as are necessary for the same.

The petitioner questioned the investigation by the EOW and alleged that the same is not being done in consonance of the directions issued by the Apex Court. The petitioner contended that EOW has not conducted any ‘afresh investigation’ and relying on the earlier investigation, completed some formalities and forwarded the matter to the Union Government to accord sanction which he said is contrary to law and also, the mandate of the Apex Court as it had directed to conduct a de novo investigation referring to Vinay Tyagi v. Irshad Ali, (2013) 5 SCC 762 in which the Court had observed that fresh investigation and de novo investigation could be ordered by the higher courts.

The Court observed that in the case of Rama Chaudhary v. State of Bihar, (2009) 6 SCC 346, it has been held that fresh investigation or re-investigation to be started ab-initio wiping out the earlier investigation altogether and has specifically held that re-investigation or further investigation means additional more or supplementary investigation. Making these observations, the Division Bench held that the investigating agency has committed an error in concluding the investigation and the process of investigation adopted by the investigating agency is also contrary to the mandate of the Hon’ble Supreme Court and directed to conduct investigation in accordance with the mandate of the Supreme Court. [Sudhi Ranjan Mohanty v. UOI, 2017 SCC OnLine MP 216, dated 01.03.2017]


Case BriefsSupreme Court

Supreme Court: Interpreting Section 173 CrPC with reference to the power of the investigative agency, the Court said that the un-amended and the amended sub-Section (8) of Section 173 of the Code if read in juxtaposition, would overwhelmingly attest that by the latter, the investigating agency/officer alone has been authorized to conduct further investigation without limiting the stage of the proceedings relatable thereto. This power qua the investigating agency/officer is thus legislatively intended to be available at any stage of the proceedings.

The bench of Dipak Misra and Amitava Roy, JJ said that though the Magistrate has the power to direct investigation under Section 156(3) CrPC at the pre-cognizance stage even after a charge-sheet or a closure report is submitted, once cognizance is taken and the accused person appears pursuant thereto, he would be bereft of any competence to direct further investigation either suo motu or acting on the request or prayer of the complainant/informant. The direction for investigation by the Magistrate under Section 202 CrPC, while dealing with a complaint, though is at a post-cognizance stage, it is in the nature of an inquiry to derive satisfaction as to whether the proceedings initiated ought to be furthered or not. Such a direction for investigation is not in the nature of further investigation, as contemplated under Section 173(8) CrPC. Had it been the intention of the legislature to invest such a power, Section 173(8) of the Cr.P.C would have been worded accordingly to accommodate and ordain the same having regard to the backdrop of the incorporation thereof. The Court said that the recommendation of the Law Commission in its 41st Report which manifesting heralded the amendment, significantly had limited its proposal to the empowerment of the investigating agency alone.

It was held that after a report is submitted by the police on completion of the investigation, the Magistrate, in both the contingencies, namely; when he takes cognizance of the offence or discharges the accused, would be committed to a course, whereafter though the investigating agency may for good reasons inform him and seek his permission to conduct further investigation, he suo motu cannot embark upon such a step or take that initiative on the request or prayer made by the complainant/informant. Not only such power to the Magistrate to direct further investigation suo motu or on the request or prayer of the complainant/informant after cognizance is taken and the accused person appears, pursuant to the process, issued or is discharged is incompatible with the statutory design and dispensation, it would even otherwise render the provisions of Sections 311 and 319 Cr.P.C., whereunder any witness can be summoned by a Court and a person can be issued notice to stand trial at any stage, in a way redundant. [Amrutbhai Shambhubhai Patel v. Sumanbhai Kantibhai Patel, 2017 SCC OnLine SC 86, decided on 02.02.2017]

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Madan B.Lokur, Kurian Joseph and Dr. A.K. Sikri, JJ directed that a Special Investigating Team led by the Director, CBI along with two officers of the CBI nominated by the Director should look into the report prepared by M.L. Sharma and other relevant documents and conduct an investigation into the abuse of authority prima facie committed by Ranjit Sinha, the then Director of CBI, with a view to scuttle enquires, investigations and prosecutions being carried out by the CBI in coal block allocation cases.

It was further directed that the Director, CBI should take the Chief Vigilance Commissioner into confidence in respect of the investigations. Mr. R.S. Cheema who is already a Special Public Prosecutor in the coal block allocation cases, will assist the Director, CBI and his team on legal issues.

Earlier, by order dated 14th May, 2015, the Court had held that it was completely inappropriate for Ranjit Sinha to have met persons accused in the coal block allocation cases without the investigating officer being present or without the investigating team being present and had formed a Committee headed by M.L. Sharma, IPS (Retired), former Special Director CBI and former Central Information Commissioner to look into the allegations. [Common Cause v. Union of India, 2017 SCC OnLine SC 54, order dated 23.01.2017]

Case BriefsSupreme Court

Supreme Court: In the petition seeking setting aside the appointment of K.V. Chaudhary as Central Vigilance Commissioner and T.M. Bhasin as Vigilance Commissioner on the ground that these persons are not of impeccable integrity and also seeking order directing investigation into the incriminating material seized in the raids conducted on the Birla and Sahara Group of Companies in question, the Court said that the materials which have been placed on record either in the case of Birla or in the case of Sahara are not maintained in regular course of business and thus lack in required reliability to be made the foundation of a police investigation..

The bench of Arun Mishra and Amitava Roy, JJ said that the Court has to be on guard while ordering investigation against any important constitutional functionary, officers or any person in the absence of some cogent legally cognizable material. When the material on the basis of which investigation is sought is itself irrelevant to constitute evidence and not admissible in evidence, it will not be safe to even initiate investigation. There has to be some relevant and admissible evidence and some cogent reason, which is prima facie reliable and that too, supported by some other circumstances pointing out that the particular third person against whom the allegations have been levelled was in fact involved in the matter or he has done some act during that period, which may have co-relations with the random entries. If the same is not done, then the process of law can be abused against all and sundry very easily to achieve ulterior goals and then no democracy can survive in case investigations are lightly set in motion against important constitutional functionaries on the basis of fictitious entries, in absence of cogent and admissible material on record, lest liberty of an individual be compromised unnecessarily.

Noticing that the materials placed on record in the present case are random sheets and loose papers and their correctness and authenticity, even for the purpose of income mentioned therein have been found to be un-reliable having no evidentiary value, by the concerned authorities of income tax, the Court said that the complaint should not be improbable and must show sufficient ground and commission of offence on the basis of which registration of a case can be ordered. [Common Cause v. Union of India, 2017 SCC OnLine SC 41, deiced on 11.01.2017]


Case BriefsSupreme Court

Supreme Court: Dealing with a pivotal question as to whether the High Court while refusing to exercise inherent powers under Section 482 of the CrPC to interfere in an application for quashment of the investigation, can restrain the investigating agency not to arrest the accused persons during the course of investigation, the Court said that this kind of order is really inappropriate and unseemly and has no sanction in law.

Stating that such direction “amounts” to an order granting anticipatory bail under Section 438 CrPC, albeit without satisfaction of the conditions of the said provision, the bench of Dipak Misra and Amitava Roy, JJ said that the court cannot issue a blanket order restraining arrest and it can only issue an interim order and the interim order must also conform to the requirement of the section and suitable conditions should be imposed.

It was held that the High Court should be well advised that while entertaining petitions under Article 226 of the Constitution or Section 482 CrPC, exercise judicial restraint. The Court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, has the jurisdiction to quash the investigation and may pass appropriate interim orders as thought apposite in law, but it is absolutely inconceivable and unthinkable to pass an order of the present nature while declining to interfere or expressing opinion that it is not appropriate to stay the investigation.  The Courts should oust and obstruct unscrupulous litigants from invoking the inherent jurisdiction of the Court on the drop of a hat to file an application for quashing of launching an FIR or investigation and then seek relief by an interim order. It is the obligation of the court to keep such unprincipled and unethical litigants at bay. [State of Telangana v. Habib Abdullah Jeelani, 2017 SCC OnLine SC 23, decided on 06.01.2017]


Case BriefsSupreme Court

Supreme Court: In the matter where the accused, along with a group of co-accused persons, each armed with deadly weapons fired a gunshot in the abdomen of the deceased after a quarrel thereby resulting into his death, the Court set aside the conviction of the accused on the ground that the investigation in the matter was carried out in a lackluster manner.

The Court said that normally, when a culprit perpetrates a heinous crime of murder and takes away the life of a human being, if appropriate punishment is not awarded to that offender, the Court will be failing in its duty. However, the Investigating Officer, dealing with a murder case, is expected to be diligent, truthful and fair in his approach and his performance should always be in conformity with the police manual and a default or breach of duty may prove fatal to the prosecution’s case.

The Court said that, in the present case, no doubt, an innocent man has lost his life at the hands of another man, but merely the seizure of gun and cartridges from the appellant, the ongoing enmity between the parties on account of various criminal litigations and the altercation and exchange of heated words between the rival groups on the morning of the same day, cannot establish the guilt of accused beyond reasonable doubt. Also, when there are material exaggerations and contradictions, which inevitably raise doubt which is reasonable in normal circumstances and keeping in view the substratum of the prosecution case, it cannot be inferred beyond reasonable doubt that the appellant had caused the death of the deceased.

The bench of Dr. A.K. Sikri and N.V. Ramana, JJ, said that the investigation was carried out with unconcerned and uninspiring performance. There was no firm and sincere effort with the needed zeal and spirit to bring home the guilt of the accused. Also, considering the fact that the accused has already undergone nine years’ of imprisonment and the Court said that it is a fit case inviting interference by this Court. [Mahavir Singh v. State of Madhya Pradesh, 2016 SCC Online SC 1250 , decided on 09.11.2016]

Case BriefsSupreme Court

Supreme Court: In the petition preferred under Article 32 of the Constitution of India by the hapless and helpless widow of Rajdev Ranjan, a senior reporter of a news daily, i.e., ‘Dainik Hindustan’, who was brutally murdered on 13.05.2016 by a group of persons, the Court, after considering the status report filed by the CBI, directed the CBI to complete the investigation within 3 months.

The Court also asked the Sessions Judge, Siwan (Town), Bihar, to submit a report along with the order sheet on the next date of hearing i.e. 28.11.2016, with regard to the status of Mohammad Kaif and Mohammad Javed as regards they are proclaimed offenders or whether there was issue of non-bailable warrants of arrest from the court or any other aspect relating to the case concerned.

The Court, by order dated 23.09.2016, had directed that police protection be given to the petition as people holding party position and position in the political executive were alleged to be involved in the case as Mohammad Kaif, one of the accused, was spotted with Shahabuddin, Vice President, Rashtriya Janta Dal and Tej Pratap Yadav, Health Minister, Government of Bihar.

The bench of Dipak Misra and Amitava Roy, JJ added that the accused persons who have been charge sheeted shall not claim any benefit for enlargement on bail under proviso to Section 167(2) of the Code of Criminal procedure, as the charge sheet has already been filed by the State Police and further investigation is in progress by the CBI. [Asha Ranjan v. State of Bihar, 2016 SCC OnLine SC 1143, decided on 17.10.2016]

Case BriefsHigh Courts

Madras High Court:  While hearing a revisional petition against the decision of the  Additional Sessions Judge, Fast Track Mahila Court, Thoothukudi  dismissing the petition of the de facto complainant under Section 173 CrPC seeking re-investigation,  the Bench of Dr. P. Devadass, J. observed that it is well settled that further investigation can be undertaken by the police even at the instance of the de facto complainant,  under Section 173(8) CrPC  and that the Judges and Lawyers should update themselves with the latest trend of law.

The petitioner- de facto complainant had filed a missing girl complaint and  sought re-investigation of the case, which prayer was dismissed by the the  Additional Sessions Judge, relying on the decision in Reeta Nag v. State of West Bengal, (2009)  9 SCC 129 on the ground that under Section 173(8) CrPC, the de facto complainant cannot ask for fresh investigation and dismissed the petition.

Allowing the petition, the Court observed that the view taken by the  Supreme Case in Reeta Nag’s case, that the police alone can do further investigation has been deviated subsequently  in Vinay Tyagi’s case  and also in Chandra Babu v. State,  (2015) 8 SCC 774.  It is well settled that not only at the instance of the police, even at the instance of the de facto complainant, further investigation under Section 173(8) CrPC can be undertaken by the Police to find out the truth of the matter. But, the subordinate court is not competent to direct fresh, new, de novo investigation, which is entirely different from further investigation.

The Court observed that “it seems that the learned Additional Sessions Judge, Fast Track Mahila Court, Thoothukudi, has not been informed of the latest trend of  law on this aspect.  Judges and Lawyers should update themselves with the latest trend of law. Law is a living organism. It grows every day. It must be ‘dynamic’ and also ‘pragmatic. And should not be ‘static’. Law and judge-made law (case-law) must undergo change in tune with the change in Society. Otherwise, it will be a dull subject. Thus, March of Law is bound to be.”

Observing that the issue involved in this case has not been adjudicated before the trial court and had been left open by the learned Judge, the Court directed the lower court to rehear the matter and decide the application  under Section 173(8) CrPC, according to law. [Samuel Jebakani v. Superintendent of Police, 2016 SCC OnLine Mad 8828, decided on August 17, 2016]


Case BriefsHigh Courts

Delhi High Court: Deciding an appeal filed by the State against acquittal of the accused for an offence under Section 354 of the Penal Code, the Bench of Sunita Gupta, J., reversed the acquittal and held that there is no legal impediment in convicting a person on the sole testimony of a single witness. In a case where an FIR was filed against the gym instructor and who despite the complainant’s refusal, forceably, in the garb of giving her a body massage pressed her thighs and touched her private parts, the accused was acquitted by the Metropolitan Magistrate on the ground that during the cross-examination of the complainant, it had come that  there was one more lady present inside the gym and that lady was not examined by prosecution. Since that lady was an independent witness, conviction could not be based on the solitary testimony of the complainant. The Public Prosecutor submitted that the trial court fell in error in acquitting the respondent solely on account of non-examination of one more lady who was alleged to be present in the gym and no reason was assigned as to why the testimony of the complainant should be disbelieved.

On the other hand, learned counsel for the respondent submitted that this appeal is against acquittal and, therefore, no interference is called for. It was further submitted that the prosecution case is based on solitary testimony of the complainant.

Rejecting the reasoning of the trial court and in the light of the above arguments, the Court held that the law under Section 134 of the Evidence Act, 1872 states that the Court may act on the testimony of a single witness on a condition that he is wholly reliable according to the wellsettled principle that evidence has to be weighed and not counted. The Court further held that non-investigation regarding presence of any other girl in the gym at the time of incident can be termed as lapse on the part of Investigating Officer however, the defect in the investigation cannot be a ground for acquittal and if primacy is given to such negligent investigation or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administrated would be destroyed. Thus, merely that some other girl was present in the gym, who was not examined by prosecution is not enough to draw an adverse inference against the prosecution. [State (NCT of Delhi) v. Pratap Singh, 2016 SCC OnLine Del 3207, 25 May 2016].

Case BriefsHigh Courts

Gujarat High Court– Allowing a plea by applicants to undergo lie detector test or narco analysis test, G.B. Shah J, agreed with view of the trial Court that narco analysis test is always to be in the aid of investigation and cannot be accepted as an evidence of a particular fact, but modified the impugned order stating that the particular fact or any fact comes after the said test is carried out by the concerned authority after following due procedure.

S.K. Bagga, learned advocate for the applicants submitted that no specific finding has been given for not allowing the narco analysis test/lie detector test and placed reliance on the decision of the Supreme Court in the case of Purshottam Swaroopchand Soni v. State of Gujarat, 2007(3) GLR 2088 wherein the Court observed ‘in a matter where it is the case of the accused that he is falsely involved, he should be permitted to give evidence in any form whether it be in the form of oral deposition before the Court or in the form of scientific nature like that of Brain-mapping test’. After careful perusal of the submissions and the observations the Court observed that it can be concluded from the impugned order that the learned trial Judge has observed to the effect that lie detector test or Narco analysis test is always to be in the aid of investigation and cannot be accepted as an evidence of a particular fact. There is no dispute as to this observation but the particular fact or any fact comes after the said test is carried out by the concerned authority after following due procedure. Under the circumstances, keeping in mind the ratio laid down by the Supreme Court the present Criminal Revision Application deserves to be partly allowed and the impugned order passed by the trial court requires to be modified. [Vinodbhai Gagandas Vanjani v. State Of Gujarat, 2016 SCC OnLine Guj 302, decided on 3.05.2016]

Case BriefsHigh Courts

Madras High Court– Expressing concern over the sordid state of affairs in the trial Courts in the State, the division bench of M.Jaichandren and S.Nagamuthu JJ., observed that when an unreasonable request for adjournment or unreasonable request to recall any witness is made and in the event, the trial Court turns down such request, the parties are advised to approach the High Court either under Section 482 CrPC or by way of revision, challenging the said order of the trial Court. The present case illustrates as to how the criminal justice delivery system could be taken for a ride by the unscrupulous men who are parties to the system.

In the instant case, the Court held that the Judge who had conducted the trial had demonstrably exhibited total indifference to his constitutional obligation to do speedy and real justice to the parties. He had allowed the witnesses to be dragged to Court and being harassed for many days. He did not record the reasons as to why the witnesses were again and again put in the witness box. He did not even record as to whether these witnesses were recalled at the instance of the accused or the prosecution. The learned Judge had only exhibited his ignorance in allowing the prosecutor to recall P.W.1 after several months to again examine the witness in chief examination when no new fact was in the hands of the learned public prosecutor to be introduced.

The Court further observed that fair investigation, fair and speedy trial and just verdict are the concomitants of right to life. Such right is not exclusive for the accused. The victim, their family members and the society at large are also entitled to have a fair trial and just verdict. The trial Court should ensure that both the accused and the witnesses, including the victims get a fair deal during trial and ultimately justice triumphs. The Court, after perusal of the facts and relevant case laws held that in order to maintain independence of the judiciary, the Judges should not allow any interference in their independent judicial thinking to do justice which is their Constitutional obligation. [Manikandan v. State, 2016 SCC OnLine Mad 2321, decided on 22.04.2016]

Case BriefsSupreme Court

Supreme Court: While deciding the question that whether the Constitutional Courts can order de-novo investigation even after the commencement of the trial and the examination of some witnesses, the Division Bench of Dipak Misra and P.C. Pant, JJ., observed that the power of the Constitutional Courts to order de-novo investigation exists and the same cannot be hindered by the commencement of trial and examination of few witnesses, as such power has been vested in the Constitutional Courts to ensure free and fair investigation. Using subtle words, Dipak Misra, J. stated that, “not for nothing it has been said that sun rises and 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.”

The present case came up questioning the decision of the Punjab and Haryana High Court which refused the plea of the appellant seeking a CBI investigation over the death of his wife. The counsel representing the CBI, P.K. Dey argued before the Court that the case of the appellant does not fall under the guidelines laid down in State of West Bengal v. Committee for Protection of Democratic Rights, West Bengal,  (2010) 3 SCC 571.

On perusal of the facts, the Court observed that for a fair trial it is necessary that a fair investigation is conducted. The Court further observed that the power to direct re- investigation should be sparingly given and such decision should be based on the facts of the case. In order to instill the faith and fear of law in the minds of the victim and the accused, it becomes necessary for the Courts to “uphold the truth, which means absence of fraud and deceit in a criminal investigation.” [Dharam Pal v. State of Haryana, 2016 SCC OnLine SC 91 decided on 29-01-2016]

High Courts

Kerala High Court: Dealing as to whether the brutal murder of a political activist by a terrorizing bomb explosion in prosecution of a criminal design made by a rival political group amounts to “terrorist act”, a bench of P. Ubaid J upheld the decision of the Investigating Officer to proceed for investigation under Section 15 read with Section 16 of the Unlawful Activities (Prevention) Act, 1967 (U.A.P.A.) which deals with “terrorist activities”. 

In the instant case, during the investigation, a special investigation team filed a report before the Court to proceed for investigation under Section 15(1)(a)(i) read with Section 16(1)(a) of the U.A.P.A. which defines “terrorist activities” and provides punishment thereto.

The learned Counsel for the petitioner K. Gopalakrishna Kurup, challenged the decision of the Investigating Officer on the ground that the alleged act of offence will not amount to “terrorist act” and that the provisions in Section 15 of the U.A.P.A are similar to the provisions in Section 3 of the repealed TADA. The Counsel for the prosecution alleged that the intention of the accused was not merely to eliminate the deceased, but to eliminate the opponents one by one, and thus to weaken the other political party in its strong holds.

The Court found that the definition of “terrorist act” under the U.A.P.A gives wider definition and brings in even “likelihood of causing terror in the mind of the people” by using bombs etc which was not there in Section 3 of the repealed TADA. The Court noted that “any act likely to strike terror in the mind of the people by bomb explosion or by use of explosives or other substances in the process of causing murder or causing injury or causing damage or destruction of property in prosecution of some criminal design, will definitely attract Section 15 of the U.A.P.A” and that “in such a situation, it cannot be said that the Investigating Agency has transgressed the limits, or has traveled beyond the border line fixed under the law by filing a report before the Court to proceed under Section 15 and 16 instead of Section 13 of the U.A.P.A.”.

The Court refused to interfere in the investigation process on the finding that the Court can interfere under Section 482 of the CrPC, when the investigation process is totally unjustifiable or illegal, or in breach of the provisions of any law, thus causing serious prejudice and hardship to the person facing such investigation or prosecution, however the same is not a situation in the instant case. Therefore, the Court directed investigation in progress under the U.A.P.A to proceed. Vikraman v. State of Kerala, 2015 SCC OnLine Ker 664, decided on 03-02-2015.

High Courts

Madras High Court: In a significant decision regarding alleged brutal custodial rape and violence committed by the policemen of Udumalpet Police Station, the Court directed the Central Bureau of Investigation (CBI) to conduct the investigation into the matter of custodial rape. The Court also awarded interim compensation to the victim.

The petitioner’s mother who is the victim in the instant case was arrested on the charge of murder and after observing the procedures and taking the victim into the police custody, the petitioner alleges that the male police officers in charge subjected the victim to severe third degree methods including hanging her upside down and insertion of lathis into her private parts. The petitioner was represented by M.Purushothaman the respondents were represented by I.S. Inbadurai.

The Court lamented on the apathetic approach taken by the judicial magistrates upon the grievance raised by the victim and the failure to register the FIR and termed that the whole fiasco has been dealt with extreme insensitivity. Keeping in mind the gravity of the case, the Court therefore observed that the investigation should be entrusted to the CBI as the present case is one of the exceptional circumstances where the High Court can issue directions to the CBI to investigate a case asit involved violation of victim’s fundamental rights as she has been subjected to brutal custodial violence. The Court further observed that the allegations made by the victim are serious in nature therefore they should not be ignored at all. Finally citing Nilabati Behera v. State of Orissa, (1993) 2 SCC 746, the Court directed the State to provide the victim an interim compensation of Rs 2 lakhs. P. Rajakumari v. Additional Director General of Police, Writ Petition No. 23320 of 2014, decided on 24.09.2014  

To read the full judgment, refer SCCOnLine