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MANGEY RAM TYAGI versus STATE OF U.P. AND ANOTHER

High Court of Judicature at Allahabad

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Mangey Ram Tyagi v. State Of U.P. And Another - CRIMINAL MISC. WRIT PETITION No. 3524 of 2005 [2005] RD-AH 2629 (9 September 2005)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 54

Criminal Misc. Writ Petition No.  3524 Of 2005.

Mangey Ram Tyagi Vs. State of U.P. and another.

Hon. Mrs. Poonam Srivastava, J.

Heard Sri Sunil Kumar, learned counsel for the petitioner and learned A.G.A. for the State.

This writ petition has been filed for quashing the order dated 14.3.2005 passed by the Sessions Judge, Gautam Budh Nagar in Criminal Revision No. 28 of 2005, Mangey Ram Tyagi Vs. State of U.P. and order dated 7.12.2004 passed by the Chief Judicial Magistrate, Gautam Budh Nagar in Crime No. 65 of 1999, State Vs. Dhanni, under Sections 420, 468, 471 I.P.C. Police Station Sector-39, Noida, District Gautam Budh Nagar. The second prayer is for issuance of a writ of mandamus commanding the Chief Judicial Magistrate, Gautam Budh Nagar to direct the Investigating Agency to inquire into veracity of defence version during investigation and report the matter to the Chief Judicial Magistrate, Gautam Budh Nagar. A Misc. Application was filed on behalf of the petitioner on 2.9.2004 for a direction to the Investigating Officer to inquire in respect of certain questions which is detailed in paragraph 19 of the said application which is annexed as Annexure-2 to the writ petition. Four questions (A), (B), (C) and (D) have been framed by the petitioner which is prayed to be inquired during the course of investigation by the Investigating Agency. This application was rejected on 7.12.2004 on the ground that any direction to the Investigating Agency will amount to interference in the investigation. While rejecting the application, it was observed by the Chief Judicial Magistrate that the applicant/petitioner if he so wishes, certain matters to be inquired also, he can approach the higher officials of C.B.C.I.D. This order was challenged in a revision which was dismissed. The revisional court rejected the application holding that it is the statutory right of the Investigating Agency to investigate a cognizable offence without any interference from the judicial officers and if such an interference is made, it will result in an unfortunate situation. The function of the judiciary and police are complementary and not overlapping.

Learned counsel for the petitioner has placed reliance on a decision of the Apex Court in the case of Anil Rai Vs. State of Bihar, 2001, Criminal Law Journal, 3969 paragraph 31.  I have perused the said decision of the Apex Court and it is apparent that the principle enunciated in the said decision is not at all applicable to the facts of the present case. The Apex Court decision was in respect of Section 157 Cr.P.C. where a copy of the first information report is necessarily to be sent to the area Magistrate. Section 157 Cr.P.C. deals with the procedure when on receipt of an information of commission of an offence, the Incharge Police Officer is required to investigate, he shall send forthwith a report of the same to the Magistrate empowered to take cognizance of such an offence and shall proceed to the spot to investigate the facts and circumstances of the case. The proviso to Section 157 Cr. P.C. however prescribes that if the offence is not of a serious nature, the Police Officer need not proceed in person or depute a subordinate officer to make investigation on the spot. Section 156 Cr.P.C. empowers the Police Officers to investigate the cognizable offence without any order of the Magistrate and Section 156(2) Cr.P.C. provides that no proceeding of a Police Officer in any circumstances or at any stage be called in question on the ground that the case was one, which such officer was not empowered under this section to investigate. The Apex Court's decision dealt with a case where the police failed to send a report to the concerned Magistrate which is in general term called '' special report'. However, the decision in the case of Anil Rai (Supra) was one which arose from an order of conviction in a criminal appeal and not while the investigation was still in progress. It is, therefore, clear that the decision cited is not at all applicable and arguments of Sri Sunil Kumar can not be accepted.

Second decision relied upon by the counsel for the petitioner is Gauri Shanker Agarwal Vs. State of U.P. and another, 2001 (1) J.I.C., 180 (Alld.).  I have gone through the decision relied upon by the counsel for the petitioner. In fact it is a case where the accused had a good alibi and the Investigating Officer had not taken notice during the course of investigation. It was in these circumstances, this Court held that even after submission of the charge sheet, further investigation can be carried out if something has been omitted by the Investigating Agency and in case it is brought to the notice of the Court then a permission can be granted under Section 173(8) Cr.P.C. Another decision relied upon by the counsel for the petitioner is Nanhey Lal and others Vs. State of U.P. and others, 2003 (46) A.C.C., 1178.  In this case  Court had held that it is always desirable, if the accused came out with some defence during investigation, it must also be investigated side by side to satisfy itself by the Investigator of its correctness. The propriety and natural justice demands that in all fairness the purpose of investigation is to un-earth the truth besides collection of evidence. The last case relied upon by the counsel for the petitioner is Nabab Khan Vs. State of Madhya Pradesh, 2003 Criminal Law Journal, 94. Once again this is in respect of the provisions of Section 157 Cr.P.C. which requires sending of the copy of the F.I.R. to the concerned Magistrate and this question was raised while arguments were going on in criminal appeal before the Madhya Pradesh High Court.

I have gone through the entire record of the case as well as each and every decisions cited by the learned counsel for the petitioner. It is always open for an accused to raise arguments during the course of trial or in appeal, the infirmity in the investigation and to bring to the notice of the Court shortcomings of the Investigating Officer to prove that the investigation was not fair and no conviction could be recorded the basis of such a tainted investigation and thus claim for an acquittal. There is no dispute that in each and every criminal trial the Investigating Officer is an important witness and it is usual practice that the Investigating Officer is subjected to extraneous cross examination to highlight the infirmities in the investigation but in the case at hand, the order which has been challenged in the writ petition, is one, in which the charge sheet has not yet been submitted. The investigation is still going on. The accused has no reasons to suspect that the investigation is not being done properly unless and until he has an access in day to day investigation carried by the concerned police officer. The petitioner has made a request for a direction to the C.B.C.I.D. to investigate on four questions framed in paragraph 19 of its application. In case the prayer is granted it will amount to nothing short of interference in exclusive domain of the police which is investigating the matter. The F.I.R. was registered at case Crime No. 65 of 1999, under Sectins 420, 468, 471 I.P.C. Police Station Sector-39, Noida, District Gautam Budh Nagar and the matter is still under investigation. The charge sheet has not yet been filed till date and I am not aware regarding conclusion of the investigation. The role of the Magistrate will come in play only when the charge sheet is submitted before the court. In the circumstances, any order, writ or direction to the Investigating Agency at this juncture of investigation is not proper. It amounts to unnecessary and illegal interference. The Apex Court in a number of decisions has clearly laid down that the court should not interfere in investigation, even in cases where the arrest of the accused has been stayed during the course of investigation, courts should go no further after the arrest is stayed and that too only to safeguard the fundamental right of liberty provided in the Constitution.

After giving careful consideration to the entire facts and circumstances of the case and also perusing various decisions, I do not find any merit in the case. The prayer in the writ petition, if granted, will only amount to uncalled for interference in the investigation which the law does not permit.

For the reasons discussed above, there is no merit in the writ petition and accordingly it is dismissed.

Dt/-19.4.2005

Rmk.


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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