2022 (7) TMI 1457 - HC - Indian Laws

Court Upholds SIT Order, Limits Magistrate Powers under Cr.P.C.

Kushal Agarwal Versus. Mahendra Kumar Jain and Ors.

Kushal Agarwal Versus. Mahendra Kumar Jain and Ors. - TMI Issues Involved:1. Maintainability of the writ petition filed by the respondent.2. Delay in the investigation by the police.3. Formation of a Special Investigation Team (SIT).4. Rights of the accused regarding the investigation process.5. Powers of the Judicial Magistrate under Section 156(3) of the Cr.P.C.6. Allegations of suppression of facts and procedural impropriety.Issue-wise Detailed Analysis:1. Maintainability of the writ petition filed by the respondent:The appellant argued that the writ petition filed by the respondent was not maintainable because the respondent had already filed an application under Section 156(3) of the Cr.P.C. without disclosing this fact while invoking the writ jurisdiction. It was contended that the appropriate remedy for grievances related to improper investigation was to approach the Judicial Magistrate. However, the court noted that the Judicial Magistrate does not have the power to constitute an SIT, and the respondent's writ petition was maintainable for seeking such relief.2. Delay in the investigation by the police:The court observed that the FIR was registered on 17.02.2021, but the investigation was not completed, and no charge sheet was filed even after 15 months. The appellant alleged that the delay was due to the respondent's failure to provide the password for a seized mobile phone promptly. However, the court found that the respondent provided the password within a reasonable time after being requested by the police, and the delay could not be attributed to the respondent.3. Formation of a Special Investigation Team (SIT):The Single Judge had directed the formation of an SIT due to the slow and directionless investigation by the existing investigating officer, who lacked experience and adequate support. The court noted that the SIT was headed by the Special Commissioner of Police (II), Kolkata Police, and included the original investigating officer. The court highlighted that the accused has no right to choose the investigating agency, and the direction to form an SIT was justified given the gravity of the offenses and the delay in the investigation.4. Rights of the accused regarding the investigation process:The court reiterated that the accused has no right to influence the manner and method of investigation. Citing precedents, the court emphasized that the accused cannot complain about the formation of an SIT or the investigation process unless there is a substantial prejudice caused to them.5. Powers of the Judicial Magistrate under Section 156(3) of the Cr.P.C.:The appellant argued that the respondent had already sought relief under Section 156(3) of the Cr.P.C., and therefore, the writ petition was not maintainable. However, the court clarified that the Judicial Magistrate's powers under Section 156(3) are limited to directing further investigation and do not extend to constituting an SIT. The court found that the respondent's writ petition seeking the formation of an SIT was within the jurisdiction of the superior court.6. Allegations of suppression of facts and procedural impropriety:The appellant alleged that the respondent suppressed the order of the Judicial Magistrate dated 06.05.2022 and that the counsel for the appellant were present during the hearing but did not mark their appearance. The court found that the order of the Judicial Magistrate was brought to the notice of the Single Judge, and the police report was taken on record. The court also noted that the allegation regarding the presence of the appellant's counsel was not substantiated by the record. The court emphasized that it could not question the judicial record and proceedings of the lower court.Conclusion:The court dismissed the appeal, finding no error in the order of the learned Single Judge. The court upheld the direction to form an SIT and emphasized that the accused has no right to influence the investigation process. The court also clarified the limited powers of the Judicial Magistrate under Section 156(3) of the Cr.P.C. and affirmed the maintainability of the respondent's writ petition. The court's decision ensures that the investigation proceeds efficiently and impartially, without undue delay.