TaxTMI 
TaxTMI 
2021 (10) TMI 1404
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....nay Kulkarni; (iv) Writ Petition No. 16088/21 is filed by Accused No. 16 - Chandrashekar Indi; and (v) Writ Petition No. 16081/21 is filed by Accused No. 21 - Somashekar. I - Facts of the case 1. This is a classic case where the political parties and the Police authorities have tried to misuse their power to bury the truth in respect of an unnatural death of one Yogishgouda goudar. 2. These writ petitions are filed by the accused persons stated supra under Articles 226 and 227 of the Constitution of India r/w Section 482 of the Code of Criminal Procedure, praying for a writ in the nature of certiorari to quash the Government Order dated 6.9.2019 made in HD 48 PCB 2016 as per Annexure-A, according sanction to the Central Bureau of Investigation ('CBI' for short), under Section - 6 of Delhi Special Police Establishment Act, 1946, to conduct further investigation with respect to Crime No. 135/2016, registered with the Dharwad Sub-Urban Police Station, Dharwad for the offence punishable under Section 302 of IPC and writ in the nature of certiorari to quash the FIR dated 24.6.2019 bearing No. RC.17(S)/2019/CBI/ACB/BLR as per Annexure - B. 3. The genesis of the present ca....
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....t of him purchasing the said lands, he would kill the Accused No. 1. It was further alleged that on such premise, the Accused No. 1 had entered into a conspiracy with Accused Nos. 2 to 6 and on 15.6.2016, with a premeditated intention to kill the deceased, had alongwith Accused Nos. 2 to 6 assaulted the deceased near the Gym and caused the death of the deceased. 5. It is further contended that subsequent to the filing of the final report by the jurisdictional Police, the mother of the deceased i.e. Tungamma and brother of the deceased i.e. Gurunath Gouda, had filed W.P. No. 58183-184/2017 before High Court of Karnataka, Dharwad Bench seeking writ of mandamus directing the investigation in respect of the information dated 15.6.2016, registered as FIR No. 135/2016, with Dharwad Sub-Urban Police to be transferred and conducted by CBI. Such a prayer was sought for on the premise that, the jurisdictional Police had not conducted a fair and impartial investigation and hence the resultant final report was also defective and therefore further investigation into the said matter was necessary by an independent agency like CBI. The learned Single Judge of High Court of Karnataka, Dharwad Ben....
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....thout application of mind and in gross negligence of the mandate as laid down by the Hon'ble Supreme Court in the case of T.T. Anthony vs. State of Kerala and others reported in (2001) 6 SCC 181, went ahead and registered a separate FIR bearing No. RC.17(S)/19/CBI/ACB/BLR, and is now indulging in investigating the subject matter of S.C. No. 50/2017, pending on the file of the IV Addl. District & Sessions Judge, Dharwad. 8. The Accused No. 1 had earlier filed Writ Petition No. 43770/2019 and Accused No. 5 has preferred Writ Petition No. 50468/2019 challenging the very order dated 6.9.2019 passed by the 1st respondent - State Government, referring the matter to the 2nd respondent CBI. When the matters were pending and being heard, the 2nd respondent had registered the FIR on 24.9.2019 in RC.17(S)/2019/CBI/ACB/BLR. When the matters stood thus, in view of the subsequent developments and since no interim order was granted, the petitioner in Writ Petition No. 51012/2019 (i.e., Accused No. 1) and petitioner in Writ Petition No. 52575/2019 (i.e., Accused No. 5) had filed memos to withdraw Writ Petition Nos. 43770/2019 and 50468/2019, with liberty to challenge the impugned order dated ....
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.... Bengaluru in Special Case No. 565/2020. 11. It is further contended that the learned Single judge of this Court was pleased to pass an interim order dated 21.11.2019, thereby staying the operation of Annexures 'A' and 'B' to the Writ Petition No. 51012/019. Being aggrieved by the said order passed by this Court, both the respondents have approached the Hon'ble Supreme Court and 2nd respondent/CBI filed Special Leave Petition (Criminal) No. 1348/2020 and the Government of Karnataka has filed Special Leave Petition (Criminal) No. 2534/2020 and the Hon'ble Supreme Court by an order dated 20.2.2020 was pleased to pass an interim order staying the operation of the order dated 21.11.2019 passed by the learned Single Judge of this Court. 12. It is further contended that in view of the interim order passed by the Apex Court, the investigation was conducted by the CBI and new facts came to light and the CBI has filed two additional charge sheets with new materials and arraying additional accused persons and so far, there are 21 accused persons in the said case. In view of the investigation material and since the report brought on record, new and shocking facts of ....
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....ements of handing over the further investigation at the hands of an independent agency like CBI and on ascertaining the legal position about power of the State to refer the matter to other agency for further investigation even in the light of the order passed by High Court of Karnataka, Dharwad Bench in W.P. Nos. 58183-84/2017, the order at Annexure-A to the writ petition is passed. There is no infirmity or illegality or irregularity in the order passed by the State Government as per Annexure-A. The new facts which have came to light subsequent to the orders impugned in the writ petitions would certainly justify the decision of the State to refer the matter for further investigation to CBI and most of the concern expressed in the representation dated 6.8.2019 turns out to be a genuine concern. Therefore, the order at Annexure-A needs to be upheld and the writ petitions are liable to be dismissed. 15. It is further contended that there are several facts, which had taken place subsequent to fling of the writ petitions and not brought to the notice of this Court and which were brought to the notice of the State Government in the representation dated 6.8.2019, such as (a) Transferri....
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....nd respondent/CBI filed objections in Writ Petition No. 51012/2019, wherein it is stated that on the basis of the information given on 15.6.2016 by Smt. Mallava Goudr w/o. deceased Yogishgouda Goudar, Crime No. 135/2016 came to be registered against unknown persons in the Dharwad Sub-Urban Police Station, Dharwad for the offence punishable under Section 302 of IPC and after investigation, the Investigating Officer filed the charge sheet against six accused persons in C.C. No. 964/2016 for having committed the offences under Sections 143, 147, 148, 120B, 302, 201 r/w Section 149 of IPC. The prosecution, in all examined 63 witnesses in S.C. No. 50/2017 on the file of the IV Addl. District & Sessions Judge, Dharwad. During the course of the trial, Smt. Thungamma, mother of the deceased and Sri Gurunatha Goudr, brother of the deceased filed Writ Petition Nos. 58183-184/2017 with a prayer to hand over investigation of the above case to CBI and the said writ petition came to be rejected on 1.3.2019 reserving liberty to invoke the provisions of Section 319 of the Code of Criminal Procedure. After the said order passed by this Court, the brother of the deceased viz., Mr. Gurunath Goudr exa....
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....ners that the 2nd respondent - CBI has registered 2nd FIR in respect of the same incident, is not correct. 18. It is further stated in the objections that as per clause 10.5 of the CBI Manual, in case of investigation being transferred to DSPE by local Police or any other law enforcement authority, the original First Information Report registered by them may be reproduced with all its details such as FIR number, date of registration, name of the police station, sections of law etc., Further, the Manual also clarifies that it must be remembered that it would not be treated as fresh FIR but a new number as per prevalent scheme of DSPE may be assigned for the purpose of maintaining uniformity in record keeping in CBI. Therefore, the FIR registered by the 2nd respondent/CBI does not amount to a second FIR for the same incident, but one registered for its administrative convenience and for statistical purpose. 19. It is further contended that in the judgment relied upon by the learned counsel for the petitioners in the case of T.T. Anthony vs. State of Kerala and others reported in (2001) 6 SCC 181, the Apex Court held that the Police authorities cannot register multiple FIRs for the ....
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.... not survive for consideration and thereby the relief sought for in the present writ petitions are liable to be rejected. It is further contended that consequent upon sanction accorded by the 1st respondent-State Government, the 2nd respondent registered FIR numbered as RC No. 17(S)/2019, conducted investigation, filed the first supplementary charge sheet on 20th May, 2020 before the jurisdictional Court and the Apex Court time and again has held that the accused has no choice with regard to mode of investigation or the agency which has to carry out investigation. It is further contended that in pursuance of the information of Smt. Mallava Goudar, wife of deceased dated 15.6.2016, the Dharwad Sub Urban Police Station registered a case in Crime No. 135/2016 against unknown accused persons for the offence punishable under Section 302 of IPC and took up the investigation. The jurisdictional police after conducting investigation filed charge sheet against six accused persons for having committed the murder of the deceased. On filing of the charge sheet, the JMFC Court, Dharwad was pleased to take cognizance and register a criminal case in C.C. No. 964/2016 for the offences punishable u....
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....3. It is further contended that, this Court by the order dated 21.11.2019 granted an interim stay of operation of the order according sanction as per Annexure-R4 and being aggrieved by the said stay order, the 2nd respondent approached the Apex Court by way of SLP (Crl) No. 1348/2020 wherein by the order dated 20.2.2020, the Apex Court stayed the operation of the interim order dated 21.11.2019 granted by the learned Single Judge of this Court as per Annexure-R5 resulting in conducting further investigation by the 2nd respondent-CBI. 24. It is further contended that, in the further investigation carried out by the 2nd respondent, it was revealed that accused No. 1 - Basavaraj Shivappa Muttagi, a political worker and office bearer of various organizations like Jaya Karnataka Organisation and Nava Yuva Shakti with serious political ambitions acted as a prime conspirator of the murder of the deceased, who contested the Zilla Panchayat Election, Dharwad during 2016 and has won the election and therefore, accused No. 1 conspired with others accused persons including accused No. 5 and decided to eliminate the deceased on account of political reasons and to further his political career. I....
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....e Gym. After parking the vehicle near the Gym, accused No. 9 sat on the wall near the Gym holding a newspaper hiding his face while accused No. 7 stood on the stairs waiting for the deceased to arrive. Accused Nos. 10 to 12 and 14 reached the area in a white Tavera car bearing registration No. KA 25 D 0420 driven by accused No. 4. After being dropped at the 1st cross Road, 60 meters right of the Gym building, accused No. 11 carrying a bag with weapons and accused No. 12 came bear the Gym at 7.32 a.m. followed by accused Nos. 10 and 14 at 7.33 a.m. waiting for the deceased to arrive. Accused Nos. 1 to 3 and 5 waited near KCD Circle to coordinate the plan and they remained in touch through phone calls with accused No. 6, who intimated about the movement of the deceased and with accused No. 4, who was driving the Tavera vehicle carrying other accused and accused No. 7, who was waiting at the spot. On arrival of the deceased at 7.36 a.m. in a silver colour Innova, when the deceased was about to enter the Uday Gym, accused No. 7, who was waiting on the stairs, sprinkled chilli powder to the eyes of the deceased from a packet carried by him and stabbed him on his neck with dagger and uns....
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....m and thereby, animosity generated and accused No. 15 decided to eliminate the deceased on account of political and personal reasons. 27. It is further contended that, accused No. 15 conspired with accused Nos. 1 and 16 along with other accused persons in order to commit the murder of the deceased following the Zilla Panchayat Meeting dated 23.4.2016. Accused No. 1 - Basavaraj Muttagi agreed to execute the crime on the assurance of accused No. 15 and accused No. 16, who had close acquaintance with accused No. 1 and was in touch with him constantly between 26.1.2016 and 2.6.2016. Furthermore, tower locations of the mobile number of accused Nos. 15 and 1 revealed that they were found at nearby locations for about six times between 23.4.2016 to 31.5.2016 and also were in constant touch with separate mobile phones or through their associates after 2.6.2016 ever since they conspired to commit the murder of the deceased. It is further contended that on the abovesaid findings, the second supplementary charge sheet was filed by the CBI before the trial Court against accused Nos. 1, 15 to 17 for having committed the offences punishable under the provisions of Sections 120B, 302, 201, 143, ....
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....estigation in Crime No. 135/2016 by the CBI which was earlier investigated by the local police and the final report was filed before the jurisdictional Magistrate as well as the matter was committed to the Sessions Court and the learned Sessions Judge after framing the charges in S.C. No. 50/2017 and examining 61 witnesses has recorded the statement of the accused persons under Section 313 of Cr.P.C. Therefore, the impugned order of sanction for further investigation is contrary to law as it is passed without obtaining consent of the jurisdictional Court and cannot be sustained in view of the dictum of the Hon'ble Supreme Court in the case of Vinay Tyagi vs. Irshad Ali and Others reported in (2013) 5 SCC 762 particularly paragraph-6. He would further contend that the impugned order passed by the State Government referring the matter to the CBI is arbitrary, illegal and without authority of law amounting to abuse of process of the law only with a view to overcome the order dated 1.3.2019 passed by this Court in W.P. Nos. 58183-184/2017 and confirmed by the Hon'ble Supreme Court by the order dated 22.7.2019 passed in S.L.P.(Crl) Nos. 5760-61/2019. He further contended that th....
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....d by the Hon'ble Supreme Court in the case of Vinay Tyagi vs. Irshad Ali and Others reported in (2013) 5 SCC 762. 31. The learned Senior Counsel further contended that issuing of Notification by the State Government is highly arbitrary and illegal as the same has been issued only with a view to wreck political vengeance and the 1st respondent is trying to scuttle the investigation by political force by referring the matter to the 2nd respondent. He would further submit that the State Government headed by the current incumbent Chief Minister came to be formed on 26.7.2019 and immediately, thereafter, by means of impugned notification dated 6.9.2019, the matter was referred to the 2nd respondent-CBI which clearly depicts that immediately after change of Government, the impugned notification has been issued at the instance of Sri Gurunath Gowda and Smt. Thungamma, who have failed to succeed before this Court as well as the Hon'ble Supreme Court. Therefore, he sought to allow the writ petition. 32. In support of his contentions, the learned Senior Counsel relied upon the following dictums of the Hon'ble Supreme Court: a) P. Sambamurthy and Others vs. State of Andhra Pra....
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....Government on 26.7.2019 and the Government Order came to be passed on 6.9.2019 and in the note dated 13.8.2019 from the Chief Secretary to Government, the Government Order with reference to same has observed that no changed circumstance was shown to pass Annexure-A and therefore, the same cannot be sustained and is liable to be quashed. 34. The learned Senior Counsel further contended that the State Government ought not to have passed the impugned order under the provisions of Sub-section (8) of Section 173 for further investigation in Crime No. 135/2016 for the offence punishable under Section 302 of IPC which is impermissible in view of the earlier order passed by this Court and confirmed by the Hon'ble Supreme Court. The State Government is not empowered to pass Annexure-A in view of the earlier orders passed by this Court and confirmed by the Hon'ble Supreme Court, as no permission was obtained from the concerned Court and as such, the same is contrary to the dictum of the Hon'ble Supreme Court in the case of T.T. Antony vs. State of Kerala and Others reported in (2001) 6 SCC 181 at paragraph-21 and therefore, according sanction to the 2nd respondent to file second....
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....her contended that the State Government has passed impugned order under Section 6 of the DSPE Act without any authority of law as it can only exercised the powers under Section 173(8) of Cr.P.C. after obtaining permission from learned JMFC. He would further contend that the interim order granted by this Court on 21.11.2019 clearly depicts that the prayer sought in the writ petition was for quashing of the Government Order entrusting the matter to the CBI, according sanction to the CBI to conduct further investigation and all further proceedings since the orders passed by the State Government is nothing but re-investigation after arraying the Investigating Officers as accused No. 19 to 21 and therefore, the provisions of Section 173(8) of Cr.P.C. would not attract. He further contended that the definition of 'Investigation' under Section 2(h) of Cr.P.C., includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate), who is authorized by a Magistrate in this behalf and the State Government absolutely has no power to refer the matter to the CBI as it has not assigned any reason for entrustin....
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....ta in criminal trials - Acquittal of accused on certain charge - Verdict binding in all subsequent proceedings); b) Bhagat Ram vs. State of Rajasthan (in Crl. A. No. 36/1969) and State of Rajasthan Vs. Ram Swaroop (in Crl. A. No. 202/1970) reported in (1972) 2 SCC 466, paragraph-13 (principle of Res Judicata is also applicable to criminal proceedings and is not permissible in the subsequent stage of the same proceedings or in some other subsequent proceedings to convict a person for an offence in respect of which an order for his acquittal has already been recorded. The plea of autrefois acquit as a bar to prosecution embodied in Section 403 of the Code of Criminal Procedure is based upon the above wholesome principle; c) Kunhayammed and Others vs. State of Kerala and Another reported in (2000) 6 SCC 359, paragraph-44(v) with regard to refusing leave to appeal is a speaking order i.e., gives reasons for refusing the grant of leave, then the order has two implications. But, this does not amount to saying that the order of the Court, Tribunal or Authority below has stood merged in the order of the Supreme Court rejecting the SLP or that the order of the Supreme Court is the only ....
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.... by the State Government is manifestly arbitrary and an abuse of process of law since it is in violation of Articles 14 and 19 of the Constitution of India. He would further contend that the impugned order passed by the State Government is an mala-fide exercise of powers which is politically motivated and cannot be sustained. The entrustment of the matter to the 2nd respondent-Agency under Section 173(8) of Cr.P.C. for further investigation by the State Government is in derogation and utter disregard to the order dated 1.3.2019 passed by this Court in W.P. Nos. 58183-184/2017 and confirmed by the judgment dated 22.7.2019 passed by the Hon'ble Supreme Court in SLP (Crl) Nos. 5760-61/2019 and therefore, the same being illegal and void is liable to be quashed. He would further contend that accused No. 16 was not a party to the original FIR filed in Crime No. 135/2016 and he has been falsely implicated in pursuance of the impugned order passed by the State Government and as such, the further investigation conducted by the CBI-2nd respondent is without any basis and cannot be sustained. He would further contend that in paragraph-3 of the Government Order dated 6.9.2019, neither any ....
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.... Hasanbhai Valibhai Quereshi vs. State of Gujarat reported in (2004) 5 SCC 347 at paragraph-13; Ram Lal Narang vs. State (Delhi Administration) reported in (1979) 2 SCC 322 at paragraph-21 and T.T. Anthony vs. State of Kerala and Others reported in (2001) 6 SCC 181 at pagraph-27. Accordingly, the impugned order defeats the constitutional goal of fair and speedy trial and therefore infracts Article 21 of the Constitution of India. 42. The learned Senior Counsel would further contend that in respect of accused No. 16, considering the facts of the present case, the impugned order, in effect, tantamounted to a reinvestigation/de novo investigation, which is impermissible in law except by the Constitutional Court for compelling reasons and in rare cases as held by the Hon'ble Supreme Court in the case of Dharam Pal vs. State of Haryana and Others reported in (2016) 4 SCC 160 and Vinay Tyagi (supra). 43. The learned Senior Counsel would further contend that the power of further investigation, either by the Court or investigating agencies can be exercised till the commencement of trial i.e., framing of charges by the Court. Admittedly, in the present case, the trial Court has alread....
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....s derogatory and utter disregard to the judgment dated 1.3.2019 passed by this Court in W.P. Nos. 58183-184/2017 and confirmed by the Hon'ble Supreme Court on 22.7.2019 in SLP (Crl) Nos. 5760-61/2019 when the same has reached finality and therefore, the State Government has no jurisdiction to hand over the case to CBI as it is contrary to the orders passed by this Court and Apex Court and on that ground also the impugned order is liable to be quashed. 46. The learned Senior Counsel further contended that the State Government has no power to over reach the order passed by this Court and affirmed by the Hon'ble Supreme Court in SLP stated supra as there is no necessity for fresh investigation or re-investigation as the trial has already been concluded. Once the trial has commenced, there cannot be further investigation conducted on 6.9.2019 by new agency after completion of trial as it is impermissible and thereby Annexures-A and B are null and void in the eye of law. He would further contend that the 2nd respondent-CBI has filed three charge sheets - i.e., on 20.5.2020 in which, the name of accused No. 15 was not found; second charge sheet on 31.1.2021 implicating the petit....
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....n (2013) 5 SCC 762 paragraphs-22, 23 and 40 with regard to further investigation not permissible; b) Vinubhai Haribhai Malaviya and Others vs. State of Gujarat and Others reported in (2019) 17 SCC 1 paragraph-36 - de nova or further investigation not permissible after commencement of trial; c) State of Punjab vs. Davinder Pal Singh Bhullar and Others reported in (2011) 14 SCC 770 - paragraphs, 101, 111, 115 and 116 where initial action is not in consonance with law, held all other subsequent and consequential proceeds will automatically become invalid; and d) Hardeep Singh vs. State of Punjab reported in (2014) 3 SCC 92 - paragraphs-15 and 17. X - ARGUMENTS ADVANCED ON BEHALF OF THE RESPONDENTS 50. Sri Tushar Mehta, learned Solicitor General of India appearing for the Government in Writ Petition No. 15828/2021 contended that on 2.5.2020 a report came to be filed before the Court under the provisions of Section 173(8) of Cr.P.C. Admittedly a charge sheet had been filed after further investigation by the 2nd respondent and cognizance of the offences stated in the charge sheet had been taken by the competent Court on 7.6.2021 in exercise of its judicial power and since the sai....
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....Court dismissed the writ petition holding that there is no material for further investigation by the CBI and as such, the application filed under Section 319 Cr.P.C., was also rejected. 51. The learned Solicitor General of India further drew the attention of the Court to List II Entry 2 of Seventh Schedule of the Constitution of India referring to Police (including railway and village police) subject to the provisions of Entry 2A of List I.] Entry 8 of List I of the Seventh Schedule to the Constitution of India refers to Central Bureau of Intelligence and Investigation. Further Section 6 of the Delhi Special Police Establishment Act envisages consent of the State Government to exercise powers and jurisdiction i.e., willingness. He further contended that Section 2(2) of the DSPE Act stipulates Constitution and Powers of Special Police Establishment. The State power under Section 6 of the said Act is an ordinary exercise of executive powers. The investigation is against the State and not against any individual to dig out the truth. 52. The learned Solicitor General of India further contended that Constitution rests on the balance between three organs of the State viz., Executive, L....
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....dinary judicial power' of the constitutional courts are mutually exclusive and are not interdependent. There is no particular form to give consent under Section 6 of DSPE Act as held by the Hon'ble Supreme Court in the case of M. Balakrishna Reddy vs. CBI reported in (2008) 4 SCC 409 (paragraph-71). He further contended that the parameters for exercise of both these distinct powers are naturally different and it is always possible and permissible, that even after the constitutional court declines to exercise its extraordinary judicial power holding that the case does not involve circumstances which are rare or exceptional, the State Government can exercise its ordinary executive powers under Section 6 in granting consent and the Central Government can, thereafter, exercise its power by accepting the investigation entrusted to it by the State Government. The said process is uninhibited by the high prerogative judicial powers of entrustment of inquiry to CBI and the same is independent and does not have any fetters with regard to whether extraordinary judicial power is or is not exercised as the constitutional court did not find the matter to be extraordinary and containing s....
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....f outcome of the present writ petitions. Therefore, the challenge to the order of the State Government under Section 6 of the DSPE Act has become infructuous by virtue of the subsequent intervening facts and the petitioners are not entitled to any relief. He would further contend that, since the competent court found the evidence collected by the CBI to be enough to take cognizance and failure of justice or prejudice is not even pleaded by the accused, the only stage, now left is to proceed and with all post cognizance stages as per the Code of Criminal Procedure as held by the Hon'ble Supreme Court in the cases of H.R. Rishbud vs. State of Delhi reported in (1955) 1 SCR 1150; Sailendra Nath Bose vs. State of Bihar reported in (1968) 3 SCR 563; and Fertico Marketing & Investment (P) Ltd. vs. CBI reported in (2021) 2 SCC 525. 59. It is further submitted that further investigation into any criminal offence is a statutory right of the police. It is, in fact, a right coupled with duty not only in the interest of the victim, but also in the interest of the accused as in a given set of facts, it might transpire that either wrong persons were implicated or real culprits were left out....
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....tioners have made out a case, it is not obligatory for the Court to entrust them with the writ of this Court, if issuance of a writ would result in miscarriage of justice which is apparent from the facts of the present case as held by the Hon'ble Supreme Court in the case of Ramesh Chandra Sankla vs. Vikram Cement reported in (2008) 14 SCC 58 and Shiv Shankar Dal Mills vs. State of Haryana reported in (1980) 2 SCC 437. Therefore, the impugned order is passed by the State Government and in pursuance of the same, the investigation is carried out by the 2nd respondent-CBI and charge sheet is filed in view of the interim order dated 20.2.2020 granted by the Hon'ble Supreme Court and is being continued till today and is ordered to be continued till these writ petitions are decided and hence, the petitioners are not entitled for any relief before this Court under Articles 226 and 227 of the Constitution of India. 64. The learned Solicitor General further contended that the accused is not entitled to say what agency should investigate him and investigation by CBI is permissible even after filing of charge sheet by the local police as held by the Hon'ble Supreme Court in the c....
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....f investigation, supplementary charge sheets are filed and there are abundant materials against accused Nos. 8, 10, 14, 15 and other new accused persons. Admittedly, cognizance taken by the competent Court and charge sheets filed are not at all challenged. Therefore, he sought to dismiss the writ petitions by adopting the arguments advanced by the learned Solicitor General of India. 67. Sri S.V. Raju, learned Additional Solicitor General along with Sri P. Prasanna Kumar, learned Counsel for respondent No. 2-CBI contended that once the Court has taken cognizance, defects if any in the investigations stood cured and the Court cannot quash the entrustment of case to the CBI for further investigation in view of subsequent developments that have taken place pursuant to the interim order passed by the Hon'ble Supreme Court staying the orders passed by the learned Single Judge of this Court. He would further contend that even after arrest of accused Nos. 15 and others, this Court rejected the bail petition and ultimately, the Hon'ble Supreme Court granted bail with stringent conditions and the interim order granted by the Hon'ble Supreme Court still continues and therefore, t....
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....Section 173(8) of Cr.P.C. He would further contend that the petitioners are challenging only the orders passed by the State Government and registering the FIR, but not the cognizance taken by the jurisdictional Court as well as subsequent final reports filed and the same was taken cognizance by the Hon'ble Supreme Court while disposing of the Special Leave Petitions and specifically referring the same in the final order. 69. The learned Additional Solicitor General further contended that the judgment relied upon by the learned Counsel for the accused persons in the case of Vinubhai case reported in (2002) 4 SCC 638 particularly paragraph-7 has no application to the facts and circumstances of the present case. Therefore, he sought to dismiss the writ petitions. 70. The learned Additional Solicitor General further contended that as there was change of Public Prosecutor and in view of involvement of accused No. 19, who was the Investigating Officer and Supervisory Officer-accused No. 20, who received illegal gratification, the State Government, in the interest of justice, thought it fit to entrust the matter to the 2nd respondent-CBI and no prejudice would be caused to the accus....
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....rfere with the impugned order, Annexure-A passed by the State Government registering FIR by the CBI in exercise of powers under Articles 226 and 227 of the Constitution of India. He also submitted that he would also adopt the arguments advanced by the learned Solicitor General of India as well as Additional Solicitor General and sought to dismiss the writ petitions. XI - Points for determination 73. In view of the aforesaid rival contentions urged by the learned counsel for the parties, the points that would arise for our consideration in these writ petitions are: i) Whether the petitioners - Accused Nos. 1, 5, 15, 16 and 21, in these writ petitions have made out a case to quash the impugned Government Order bearing No. HD 48 PCB 2016, Bengaluru, dated 6.9.2019, by which sanction has been accorded to the Central Bureau of Investigation, under Section (6) of Delhi Special Police Establishment Act, 1946 for further investigation of Crime No. 135/2016 under Section 302 of IPC lodged in Dharwad Sub-Urban Police Station, Dharwad, and to quash the FIR dated 24.9.2019 made in Bangalore/CBI/ACB/BLR 2019 RC 17(S)/2019, by the Superintendent of Police, Central Bureau of Investigation, in....
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....d had proceeded to Gym which was located within the jurisdiction of Dharwad Sub-Urban Police Station and when he was about to enter the Gym, certain unknown persons assaulted him with weapons and caused his death. On the basis of the information received, Dharwad Sub-Urban Police registered Crime No. 135/2016 on 15.6.2016 against unknown persons for the offence punishable under Section 302 of IPC and after investigation, the Investigating Officer filed the final report against six accused persons (Accused No. 1 is the petitioner in W.P. No. 51012/2019) for the offences punishable under Sections 143, 147, 148, 120B, 302, 201 r/w 149 of IPC. After registering the case, the jurisdictional court taken cognizance and committed the matter to the Sessions Court. The Sessions Court proceeded for the trial and also recorded the statements of the accused persons under the provisions of Section 313 of the Code of Criminal Procedure. 77. At that stage, Smt. Tungamma and Gurnnathagouda, the mother and brother of the deceased filed Writ Petition Nos. 58183-184/17 for a writ of mandamus directing the CBI to investigate the murder of Yogishgouda Goudar and submit report and to take action as per ....
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....m. and Accused No. 6 was arrested on 20.6.2016. Recoveries were made and there is no mahazar drawn by the Investigating Officer of the place of arrest of the accused persons nor the exact place of their arrest was mentioned anywhere. 80. It was further alleged that the resident of Vikasa Nagar, Dharwad, informed the Police that one unattended black colour Hyundai Accent car was parked in the locality since a week prior to the incident and the Police came to the spot and taken car and promptly returned the said car to its owner without any enquiry. It is further contended that the presence of the widow of the deceased was secured before the court and she has been examined and the trial judge did not record her statement which actually deposed and further alleged that Respondent No. 10 therein i.e., Accused No. 15 is the master mind in the conspiracy to murder her husband and trial Judge initially refused to mark the caution letter as Exhibit and after serious efforts made by the Public Prosecutor, the letters are marked as Ex. P1 and P2. 81. It is further contended in the said writ petition that respondent No. 11 therein viz., Mr. Tulajappa Sulfi, who was working as Deputy Superin....
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....319 of the Code of Criminal Procedure can be invoked if CW.19 who did not appear before the Court place any material before the court to array the real culprit. Accordingly, dismissed the said writ petition. 83. It is also not in dispute that against the said order passed, the mother and brother of the deceased filed Petition for Special Leave to Appeal (crl.) Nos. 5760-61/2019 and the Hon'ble Supreme Court dismissed the said SLP on 22.7.2019. 84. It is an undisputed fact that an application filed under section 319 of the Code of Criminal procedure came to be dismissed by the trial Court by an order dated 26.8.2019. Against the said order, the brother of the deceased i.e., Gurunathgouda filed Criminal Petition No. 101725/2019 before this Court. In the said criminal petition, learned counsel for the petitioner therein submitted that the petition may be dismissed as having become infructuous in the light of the subsequent developments. Accordingly, the said criminal petition came to dismissed by the order dated 7.6.2011. 85. It is also not in dispute that thereafter the impleading applicant No. 2 - Gurunathagouda gave representation dated 6.8.2019 to the Chief Minister of Karn....
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....f the order passed by the learned Single Judge of this Court. Resultantly, the investigation was conducted and carried out by the CBI. The Investigating Officer of the CBI filed the 1st supplementary charge sheet on 20.5.2020 adding Accused Nos. 7 to 14 to the array of the accused and same was taken cognizance of by the Court. Thereafter on 30.1.2021 2nd supplementary charge sheet was filed adding Accused Nos. 15 to 17. Further, since Accused Nos. 19 and 20 were public servants, sanction to prosecute them has also been obtained by the CBI. The concerned court took the cognizance of all the additional charge sheets filed by the order dated 7.6.2021, thereby the case stands registered as against Accused Nos. 15 to 17 as well. 88. The Hon'ble Supreme Court while disposing of Petition for SLP (Crl.) 1348/2020 on 11.8.2021, has made certain observations, which are as under: "By order dated 20.02.2020, this Court issued notice in the Special Leave Petition and as an interim measure, directed that there would be stay of operation of the order passed by the High Court. Resultantly, the investigation was conducted and carried out by the CBI. We have been given to understand that af....
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....d in the meeting held on 24.4.2015, thereby the Accused No. 15 and other accused have developed vengeance. Accordingly, after entering into conspiracy, on 15.6.2016 the deceased was killed near the Gym within the jurisdiction of Dharwad Sub-Urban Police Station and the Police registered the case for the offence punishable under the provisions of Section 302 of IPC in Crime No. 135/2016 against unknown persons. During the course of examination of the prosecution witnesses in SC 50/2017, mother and brother of the deceased approached the then Chief Minister with a representation requesting to refer the matter to CBI and the said representation was not fructified into action. It is further alleged that Gurunathgouda, brother of the deceased has been examined as PW.58 and during the course of his evidence, he has stated that the police have not investigated the case properly and that one more car which was involved in the incident has been left out from the investigation and CCTV footages around the place of incident has not been obtained by the State Police, and that mother of the deceased also given complaint to the Government in that regard. During the said period, the said Gurunathg....
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.... trying to settle the scores against each other taking the advantage of the judicial process. 90. "It is well settled that the State Government acting under the Constitution, is under constitutional duty coupled with power. Every Government is a trustee of the society and in all facets of public administration, every Government has to exhibit honesty, integrity, sincerity and faithfulness in implementation of the political, social, economic and constitutional policies to integrate the nation, to achieve excellence and efficiency in the public administration. Government is entrusted with duty and power to implement constitutional policy under Articles 14, 21 and 300A and all inter-related directive principles of state policy under the Constitution, should exhibit transparency in implementation and of accountable for due effectuation of constitutional goals. Unfortunately, even after lapse of 75 years of independence of our country, no political party is fighting to protect the rights of every citizen of the country and every political party have their own agenda and design to continue in the power for ever and every political party is trying to take advantage of the judicial proces....
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....o be available to achieve the professed object. 93. It is high time for the judiciary to protect the fundamental rights of the citizens of this country to ensure justice must not only be done but must be seen to be done and majesty of rule of law is to be upheld and it is to be ensured that guilty are punished in accordance with law notwithstanding their status and authority which they might have enjoyed. This Court being the protector of the civil liberties of the citizens, has not only power and jurisdiction but also an obligation to protect the fundamental rights guaranteed by part III in general and Article 21 of the Constitution in particular, zealously and vigilantly. 94. Keeping in mind the aforesaid principles, it is relevant to consider at this stage whether the State Government is justified in entrusting the matter to the CBI in pursuance of the impugned Government Order dated 6.9.2019, in view of the representation made by the kith and kin of the deceased. A careful perusal of the records which culminated into passing of the impugned Government Order dated 6.9.2019 clearly indicates that the State Government was aware of the fact that the complainant had earlier approa....
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....ed against the accused persons nor challenged the cognizance taken by the Court after applying its judicial mind. 96. It is also relevant to state that soon after Government Order dated 6.9.2019 issued by the State Government handing over the matter to the CBI, the 2nd respondent filed memo dated 27.9.2019 before the Principal Civil Judge (Jr.Division) & JMFC, Dharwad under the provisions of Section 173(8) and also one more memo dated 27.9.2019 filed on the file of the learned IV Addl. District & Sessions Judge, Dharwad under provisions of Section 173(8) of the Code of Criminal Procedure intimating the Court about CBI taking up the matter for further investigation. 97. The 2nd charge sheet filed depicts that the further investigation conducted has revealed that Accused No. 1 had arranged accused outside Dharwad to execute the murder of the deceased Yogishgouda Goudar and the said accused persons were not arrested by the local police in their investigation and Accused No. 1 surrendered voluntarily during the investigation as a part of larger conspiracy. The analysis of CCTV footage and the confrontation of the same with witnesses and the charge-sheeted accused led to the identific....
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.... murder of the deceased Yogishgouda Goudar. The investigation further revealed that for a period from January 2016 to June 2016, CDR of the personal mobile number of Mr. Vinay Kulkarni (Accused No. 15) (9663406677) showed that he was in touch with Shri Basavaraj Muttagi (Accused No. 1) in his mobile number (9538659906) on 57 occasions. Further, Accused No. 1 was also in touch with the mobile number registered in the name of wife of the petitioner (9611683099) and the CDR indicates 54 calls made between 16.4.2016 to 30.5.2016 a total of 94 calls from January 2016 till 30.5.2016. Apart from those calls, the tower locations of the mobile numbers registered in the name of Mr. Vinay Kulkarni (Accused No. 15) and Shri Basavaraj Muttagi (Accused No. 1) were found at near locations for six times from the period 23.4.2016 to 31.5.2016 suggesting that they met several times prior to the murder. 98. The further investigation revealed in pursuance of the conspiracy, Sri Vinay Kulkarni (Accused No. 15) made arrangements for the surrender of Accused Nos. 1 to 6 in place of the accused who executed the crime (Accused Nos. 7 to 14). The Accused Nos. 1 to 5 surrendered before the then ACP Shri Vas....
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....sed persons in the supplementary charge sheets and the competent Court took cognizance of the additional charge sheets. Therefore, the contention of the learned counsel for the petitioners that the investigation is defective, mala fide and there is no permission obtained from the Court, cannot be accepted and same is devoid of any merit. 100. It is relevant to consider the provisions of 173 of the Code of Criminal Procedure, which reads as under: "173. (8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2)." 101. A careful reading of the said provisions, makes it clear sub-section (8) of Section 173 of the Code of Criminal Procedure does talk ....
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....tion was carried out whereafter an additional charge-sheet was filed against Accused 1 to 3 in the Court of the IVth Additional Munsif Magistrate, Chittoor for offences under Sections 199, 200, 204 and 120 of the Penal Code. More accused persons were also added in the charge-sheet in the category of the accused. Indisputably, the case was transferred from the Tirupati Court to a Designated Court at Chittoor. 17. It is not a case where investigation was carried out in relation to a separate conspiracy. As allegations had been made against the officer of a local police station in regard to the mode and manner in which investigation was carried out, a further investigation was directed. The court was informed thereabout. Although, no express permission was granted, but evidently, such a permission was granted by necessary implication as further proceeding was stayed by the learned Magistrate. It is also not a case where two charge-sheets were filed before two different courts. The court designated to deal with the matters wherein investigation had been carried out by CID, is located at Chittoor. It is in the aforementioned situation, the Sessions Judge transferred the case pending i....
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....be considered to be always on duty, and may at any time be employed as a police officer in any part of the general police district. The Act, as its long title shows, was enacted to reorganise the police and to make it a more efficient instrument for the prevention and detection of crime. Investigation comprehends detection of the crime. General police district covers the entire State. Inspector General, Vigilance, being appointed for the whole of the State, is a police officer considered to be on duty for all purposes of the Act in the whole of the State and it is open to the State Government to employ him as police officer in any part of the general district. This would effectively answer the contention of Respondent 1 that Inspector General, Vigilance, being only in charge of bribery and corruption cases, could not be directed by the State Government in exercise of its executive administrative function to take over investigation of a cognisable offence registered at railway police station because when he was directed to take over the investigation it would mean that he was employed as a police officer in that police station for the detection of the crime. 17. The High Court con....
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....at sub-section (8) of Section 173 clearly indicates the power of further investigation after submission of a report and that power is conferred on the officer in charge of a police station only and, therefore, the State Government was incompetent to direct further investigation. It was further contended that in view of the provision contained in Section 173(8) it would not be open to the court to so interpret the word "superintendence" in Section 3 of the Police Act as to empower the State Government to direct investigation being done by someone other than the statutory authority envisaged by Section 173(8) because such an interpretation would derogate from the principle that where a thing is required by a statute to be done in a particular way it shall be deemed to have prohibited that thing being done in any other way. In Ex parte Stephen [(1876) 3 Ch.D. 659] the principle is stated that if a statute directs a thing to be done in a certain way that thing shall not, even if there be no negative words, be done in any other way. Subba Rao, J. in Patna Improvement Trust v. Smt. Lakshmi Devi [AIR 1963 SC 1077 : 1963 Supp 2 SCR 812, 823 : (1965) 1 SCJ 119] spelt out the combined effect....
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....stigation, in continuation of the 1st FIR filed. The contention that absolutely there is no reason for disapproval of the investigation by the local police and Government has no independent power, cannot be accepted. As already stated supra, the entire original records maintained by the Government culminating into passing of the impugned order clearly depicts that the representation made by the kith and kin of the deceased requesting for entrustment of the matter to CBI for further investigation, has been scrupulously considered in accordance with the provisions of Business Transaction Rules by the concerned authorities of the Government and the Home Minister and the Chief Minister and after application of mind and after being satisfied that it is a fit case to refer the matter to CBI, it has issued the impugned Government Order by order and in the name of the Governor of Karnataka. Therefore, it is a clear case of further investigation and not re-investigation as alleged. 106. Our view is fortified by the dictum of the Hon'ble Supreme Court in the case of Pradeep Ram v. State of Jharkhand reported in (2019) 17 SCC 326, wherein at paragraph-45 it is held as under: 45. Sub-se....
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....to the extent of arguing that even when the State police is not in a position to conduct an impartial investigation because of extraneous influences, the Court still cannot exercise executive power of directing the police force of another State to carry out investigations without the consent of that State. In such a situation, the matter is best left to the wisdom of Parliament to enact an appropriate legislation to take care of the situation. According to the learned counsel, till that is done, even such an extreme situation would not justify the Court upsetting the federal or quasi-federal system created by the Constitution. 16. Shri Goolam E. Vahanvati, learned Attorney General for India, appearing on behalf of the Union of India, submitted that the entire approach of the State being based on an assumption that the alleged restriction on Parliament's legislative power under Entry 80 of List I of the Seventh Schedule to the Constitution and restriction on the power of the Central Government under Section 6 of the Special Police Act to issue a notification binds the constitutional courts i.e. the Supreme Court and the High Courts is fallacious, inasmuch as the restrictions o....
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....efore it, was convinced that the State police was dragging its feet insofar as investigation into the 4-1-2001 carnage was concerned. 39. It is trite that in the constitutional scheme adopted in India, besides supremacy of the Constitution, the separation of powers between the legislature, the executive and the judiciary constitutes the basic features of the Constitution. In fact, the importance of separation of powers in our system of governance was recognised in Special Reference No. 1 of 1964 [AIR 1965 SC 745 : (1965) 1 SCR 413], even before the basic structure doctrine came to be propounded in the celebrated case of Kesavananda Bharati v. State of Kerala [(1973) 4 SCC 225], wherein while finding certain basic features of the Constitution, it was opined that separation of powers is part of the basic structure of the Constitution. Later, similar view was echoed in Indira Nehru Gandhi v. Raj Narain [1975 Supp SCC 1] and in a series of other cases on the point. Nevertheless, apart from the fact that our Constitution does not envisage a rigid and strict separation of powers between the said three organs of the State, the power of judicial review stands entirely on a different pede....
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....wer by the constitutional courts would not violate the doctrine of separation of powers. In fact, if in such a situation the Court fails to grant relief, it would be failing in its constitutional duty. (vii) When the Special Police Act itself provides that subject to the consent by the State, CBI can take up investigation in relation to the crime which was otherwise within the jurisdiction of the State police, the Court can also exercise its constitutional power of judicial review and direct CBI to take up the investigation within the jurisdiction of the State. The power of the High Court under Article 226 of the Constitution cannot be taken away, curtailed or diluted by Section 6 of the Special Police Act. Irrespective of there being any statutory provision acting as a restriction on the powers of the Courts, the restriction imposed by Section 6 of the Special Police Act on the powers of the Union, cannot be read as restriction on the powers of the constitutional courts. Therefore, exercise of power of judicial review by the High Court, in our opinion, would not amount to infringement of either the doctrine of separation of power or the federal structure. 70. Before parting wi....
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....tions against the petitioners? If so, its effect? Q. No. 4.--Whether in absence of officers/official of NCL, charge of criminal conspiracy under Section 120-B IPC could be made out?" 7. The learned Single Judge vide his detailed order dated 24-2-2015 [Fertico Mktg. & Investment (P) Ltd. v. CBI, 9], referred the following two questions to the Division Bench : [Fertico Mktg. & Investment (P) Ltd. case [Fertico Mktg. & Investment (P) Ltd. v. CBI], SCC OnLine All para 83] "83. ... 1. Whether investigation of such cases having involvement of public servant under control of the State Government of U.P. as well as private individuals for offences punishable under the Prevention of Corruption Act, 1988 (49 of 1988), and attempts, abetments and conspiracies in relation to all or any of the offence or offences mentioned above and any other offence or offences committed in the course of the transaction and arising out of the same facts under the G.O. of the State Government dated 15-6-1989 can be investigated by CBI assuming suo motu jurisdiction under Section 6 of the DSPE Act without the previous permission or consent of the State Government? 2. Whether total non-compliance/absence ....
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....ce Establishment of or above the rank of Sub-Inspector may, subject to any orders which the Central Government may make in this behalf, exercise the powers of the officer in charge of a police station in that area and when so exercising such powers, shall be deemed to be an officer in charge of a police station discharging the functions of such an officer within the limits of his station. 6. Consent of State Government to exercise of powers and jurisdiction.--Nothing contained in Section 5 shall be deemed to enable any member of the Delhi Special Police Establishment to exercise powers and jurisdiction in any area in a State, not being a Union Territory or railway area, without the consent of the Government of that State." 17. It could thus be seen that though Section 5 enables the Central Government to extend the powers and jurisdiction of Members of the DSPE beyond the Union Territories to a State, the same is not permissible unless a State grants its consent for such an extension within the area of the State concerned under Section 6 of the DSPE Act. Obviously, the provisions are in tune with the federal character of the Constitution, which has been held to be one of the bas....
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....f prejudice or miscarriage of justice but the invalidity of the investigation has no relation to the competence of the court. 110. Admittedly, in the present case the State Government by the impugned Government Order has granted its consent and accordingly, the Central Government also ordered for the extension of the provisions of the DSPE Act by issuing a notification. Therefore, the order passed by the State Government entrusting the matter to CBI for further investigation, is in accordance with law. 111. It is not in dispute that W.P. Nos. 58183-184/2017 filed before Dharwad Bench of High Court of Karnataka, seeking writ of mandamus directing the investigation in respect of the information dated 15.6.2016, registered as FIR No. 135/2016, with Dharwad Sub-Urban Police to be transferred and conducted by CBI, came to be dismissed by the order dated 1.3.2019. The same has been confirmed by the Hon'ble Supreme Court in SLP (Crl.) Nos. 5760-5761/2019 by the order dated 22.7.2019. It is also not in dispute that after dismissal of the Writ Petition for entrustment of the matter to CBI and confirmation of the same by the Hon'ble Supreme Court, the brother of the deceased i.e., ....
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....olice filed the FIR and the same ended in filing the B report. That is the subject matter of PCR 236/2019 pending before the Prl. Civil judge, Dharwad for adjudication between the parties. 113. The Hon'ble Supreme Court in the case of Satishkumar Nyalchand Shah v. State of Gujarat, reported in (2020) 4 SCC 22 while considering the provisions of Sections 156(3) and 173(8) of the Code of Criminal Procedure, has held that the power of the Court to direct the police to conduct further investigation cannot have any inhibition and at paragraphs 10, 11 and 12 of the judgment, observed as under: 10. Having heard the learned counsel appearing on behalf of the respective parties and the private respondent herein, we are of the opinion that as such no error has been committed by the High Court dismissing the application submitted by the appellant herein to implead him in the special criminal application filed by the private respondent herein challenging the order passed by the learned Chief Judicial Magistrate rejecting his application for further investigation under Section 173(8) CrPC with respect to one other accused, namely, Shri Bhaumik against whom no charge-sheet has been filed ....
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.... Bhaumik is not required to be heard at this stage, there is no question of hearing the appellant, one of the co-accused against whom the charge-sheet is already filed and the trial against whom is in progress and no relief of further investigation is sought against him. Therefore, the High Court is absolutely justified in rejecting the application submitted by the appellant to implead him as a party-respondent in the special criminal application. 12. Now, so far as the reliance placed upon Rule 51 of the Gujarat High Court Rules by the learned Senior Advocate appearing on behalf of the appellant is concerned, we are of the opinion that in the facts and circumstances of the case, Rule 51 shall not have any application for further investigation under Section 173(8) CrPC. Proceedings arising out of an application under Section 173(8) CrPC cannot be equated with the appeal or application against the order passed in criminal case as stated in Rule 51. Therefore, Rule 51 of the Gujarat High Court Rules has no application at all. 114. It is not in dispute that the Investigating Officer of the 2nd respondent/CBI, who conducted further investigation filed the supplementary charge sheets....
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....egative, this Court held that if the plea of invalidity of investigation is raised at sufficiently early stage, the court, instead of taking cognizance, direct reinvestigation by competent investigating officer. But, after cognizance is taken, the trial cannot be quashed for invalidity of investigation. 10. The observations in the said judgment are : (H.N. Rishbud case [H.N. Rishbud v. State (UT of Delhi), AIR 1955 SC 196 : (1955) 1 SCR 1150 : 1955 Cri LJ 526], AIR pp. 203-05, paras 9-10) "9. The question then requires to be considered whether and to what extent the trial which follows such investigation is vitiated. Now, trial follows cognizance and cognizance is preceded by investigation. This is undoubtedly the basic scheme of the Code in respect of cognizable cases. But it does not necessarily follow that an invalid investigation nullifies the cognizance or trial based thereon. Here we are not concerned with the effect of the breach of a mandatory provision regulating the competence or procedure of the Court as regards cognizance or trial. It is only with reference to such a breach that the question as to whether it constitutes an illegality vitiating the proceedings or a m....
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....gality committed in the course of investigation does not affect the competence and the jurisdiction of the court for trial is well settled as appears from the cases in Parbhu v. King Emperor [Parbhu v. King Emperor, AIR 1944 PC 73] and Lumbhardar Zutshi v. R. [Lumbhardar Zutshi v. R., AIR 1950 PC 26] These no doubt relate to the illegality of arrest in the course of investigation while we are concerned in the present cases with the illegality with reference to the machinery for the collection of the evidence. This distinction may have a bearing on the question of prejudice or miscarriage of justice, but both the cases clearly show that invalidity of the investigation has no relation to the competence of the Court. We are, therefore, clearly, also, of the opinion that where the cognizance of the case has in fact been taken and the case has proceeded to termination, the invalidity of the precedent investigation does not vitiate the result, unless miscarriage of justice has been caused thereby. 10. It does not follow, however, that the invalidity of the investigation is to be completely ignored by the Court during trial. When the breach of such a mandatory provision is brought to th....
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....trate as a mere matter of routine but it is an exercise of his judicial discretion having regard to the policy underlying it. In our opinion, therefore, when such a breach is brought to the notice of the Court at an early stage of the trial the Court will have to consider the nature and extent of the violation and pass appropriate orders for such reinvestigation as may be called for, wholly or partly, and by such officer as it considers appropriate with reference to the requirements of Section 5-A of the Act. It is in the light of the above considerations that the validity or otherwise of the objection as to the violation of Section 5(4) of the Act has to be decided and the course to be adopted in these proceedings, determined." 116. It is alleged by the petitioners that there is a defect or illegality committed by the CBI during the course of investigation. A defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. Admittedly in the present case, what is challenged is only entrustment of the matter by the State government to CBI and filing of FIR by the 2nd respondent/CBI. Admittedly, the fil....
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....ice has been caused thereby, as held by the Hon'ble Supreme Court in the case of Vinubhai Haribhai Malaviya and others vs. State of Gujarat and Another reported in (2019) 17 SCC, wherein at paragraph-29 it is held as under: 29. Ram Lal Narang v. State (Delhi Admn.) [Ram Lal Narang v. State (Delhi Admn.), (1979) 2 SCC 322 : 1979 SCC (Cri) 479], is an early judgment which deals with the power contained in Section 173(8) after a charge-sheet is filed. This Court adverted to the Law Commission Report and to a number of judgments which recognised the right of the police to make repeated investigations under the Code of Criminal Procedure, 1898. It then quoted the early Supreme Court judgment in H.N. Rishbud v. State of Delhi [H.N. Rishbud v. State of Delhi, AIR 1955 SC 196 : 1955 CriLJ 526 : (1955) 1 SCR 1150] case as follows : (Ram Lal Narang case [Ram Lal Narang v. State (Delhi Admn.), (1979) 2 SCC 322 : 1979 SCC (Cri) 479], SCC pp. 335-36, para 17) "17. In H.N. Rishbud v. State of Delhi [H.N. Rishbud v. State of Delhi, AIR 1955 SC 196 : 1955 Cri LJ 526 : (1955) 1 SCR 1150] this Court contemplated the possibility of further investigation even after a court had taken cognizance....
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....ivate individual. Similarly, where the involvement of persons who are not already accused comes to the notice of the investigating agency, the investigating agency cannot keep quiet and refuse to investigate the fresh information. It is their duty to investigate and submit a report to the Magistrate upon the involvement of the other persons. In either case, it is for the Magistrate to decide upon his future course of action depending upon the stage at which the case is before him. If he has already taken cognizance of the offence, but has not proceeded with the enquiry or trial, he may direct the issue of process to persons freshly discovered to be involved and deal with all the accused in a single enquiry or trial. If the case of which he has previously taken cognizance has already proceeded to some extent, he may take fresh cognizance of the offence disclosed against the newly involved accused and proceed with the case as a separate case. What action a Magistrate is to take in accordance with the provisions of CrPC in such situations is a matter best left to the discretion of the Magistrate. The criticism that a further investigation by the police would trench upon the proceeding....
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....e of justice, the entire proceedings cannot be said to be vitiated. Though it is a procedural irregularity, such procedural irregularity is curable and it should have been either brought to the notice of the concerned Magistrate who took cognizance of the charge sheets or ought to have been challenged before the appropriate forum. The same has not been done. After cognizance has been taken by the learned Magistrate and the case was committed to the court of sessions, now it is not open for the petitioners to contend that in the event the very entrustment of the matter by the State to CBI as per the Government Order dated 6.9.2019 is held to be invalid, all consequential procedures are invalid, in view of the final order dated 11.8.2021 passed by the Hon'ble Supreme Court in SLP (Criminal) 1348/2020. 119. At this stage, it is relevant to state that petitioners filed these writ petitions challenging the Government Order dated 6.9.2019, in terms of which case relating to the murder of one Yogesh Gowda, Member of Dharwad Zilla Panchayat was made over by the State Government to the CBI. While issuing notice in said writ petition, the learned Single Judge of this Court by the order ....
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....e of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR o....
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.... constrained to express our disapproval since the text, tenor and tone of the above observations leave us with the feeling that such misplaced sympathy indicated therein appears to have considerably weighed with the learned Judges in taking the extreme step in quashing the first information report. We do not like to make any more comment except saying that as we have pointed out in our exordial note, in our democratic polity where the 'Rule of Law' reigns no one -- however highly placed he may be -- can claim immunity, much less absolute immunity from the Law, but he is always under the law. 122. In the present case, the allegations made in the first information report, prima facie constitute cognizable offence and make out a case against the accused persons. After investigation, the Investigating Officer of the 2nd respondent/CBI filed supplementary charge sheets and the competent Court took cognizance of the supplementary charge sheets and the matter is committed to the court of Sessions. The accused persons have not made out an express legal bar engrafted in any of the provisions of the Code to the institution and continuance of the proceedings in Crime No. 135/2016. Th....
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....of the process of any court or otherwise to secure the ends of justice." A bare perusal of Section 482 CrPC makes it crystal clear that the object of exercise of power under this section is to prevent abuse of process of court and to secure ends of justice. There are no hard-and-fast rules that can be laid down for the exercise of the extraordinary jurisdiction, but exercising the same is an exception, but not a rule of law. It is no doubt true that there can be no straitjacket formula nor defined parameters to enable a court to invoke or exercise its inherent powers. It will always depend upon the facts and circumstances of each case. The courts have to be very circumspect while exercising jurisdiction under Section 482 CrPC. 17. It is no doubt true that the courts have to be very careful while exercising the power under Section 482 CrPC. At the same time we should not allow a litigant to file vexatious complaints to otherwise settle their scores by setting the criminal law into motion, which is a pure abuse of process of law and it has to be interdicted at the threshold. A clear reading of the complaint does not make out any offence against the appellant Branch Manager, much ....
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....CC (Cri) 63], (v) Aleque Padamsee v. Union of India [(2007) 6 SCC 171 : (2007) 3 SCC (Cri) 1], (vi) M.C. Mehta v. Union of India [(2008) 1 SCC 407 : (2008) 1 SCC (Cri) 216], (vii) R.S. Sodhi v. State of U.P. [1994 Supp (1) SCC 143 : 1994 SCC (Cri) 248], (viii) Ramesh Kumari v. State (NCT of Delhi) [(2006) 2 SCC 677 : (2006) 1 SCC (Cri) 678], (ix) Kashmeri Devi v. Delhi Admn. [1988 Supp SCC 482 : 1988 SCC (Cri) 864], (x) Gudalure M.J. Cherian v. Union of India [(1992) 1 SCC 397], and (xi) Punjab & Haryana High Court Bar Assn. v. State of Punjab [(1994) 1 SCC 616 : 1994 SCC (Cri) 455] and concluded in paras 60-61 as under: (Rubabbuddin Sheikh case [(2010) 2 SCC 200 : (2010) 2 SCC (Cri) 1006], SCC pp. 216-17) "60. Therefore, in view of our discussions made hereinabove, it is difficult to accept the contentions of Mr. Rohatgi, learned Senior Counsel appearing for the State of Gujarat that after the charge-sheet is submitted in the court in the criminal proceeding it was not 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 independent agency. Therefore, it can safely be concluded that in an appropriat....
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....nestly the local police may carry out the investigation, the same will lack credibility as allegations were directed against them. This Court, therefore, thought it both desirable and advisable and in the interest of justice to entrust the investigation to CBI so that it may complete the investigation at an early date. It was clearly stated that in so ordering, no reflection either on the local police or the State Government was intended. This Court merely acted in public interest. 64. The above decisions and the principles stated therein have been referred to and followed by this Court in Rubabbuddin Sheikh [(2010) 2 SCC 200 : (2010) 2 SCC (Cri) 1006] where also it was held that considering the fact that the allegations have been levelled against high-level police officers, despite the investigation made by the police authorities of the State of Gujarat, ordered investigation by CBI. Without entering into the allegations levelled by either of the parties, we are of the view that it would be prudent and advisable to transfer the investigation to an independent agency. It is trite law that the accused persons do not have a say in the matter of appointment of an investigation agenc....
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....stablishment neither refers to "notification" nor "order". It merely requires consent of the State Government for the application of the Delhi Act. Parliament, in our considered opinion, advisedly and deliberately did not specify the mode, method or manner for granting consent though in two preceding sections such mode was provided. If it intended that such consent should be in a particular form, it would certainly have provided the form as it was aware of different forms of exercise of power. It, therefore, depends on the facts of each case whether the consent required by Section 6 of the Delhi Act has or has not been given by the State Government and no rule of universal application can be laid down. 128. The parameters for exercise of both the distinct powers of Government and Courts are naturally different and it is always possible and permissible, that even after the constitutional court declines to exercise its extraordinary judicial power holding that the case does not involve circumstances which are rare or exceptional, the State Government can exercise its ordinary executive powers under section 6 of the Delhi Special Police Establishment Act, 1946 in granting consent and....
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....ey were handed over to judicial custody on 20.6.2016 and therefore, question of handing over the matter to the CBI would not arise at all. Accordingly, the matter was referred to the higher authorities in the Government. At paragraph-11 of the order sheet, the Deputy Secretary, Home Department (Law & Order) and the Principal Secretary to the Government (PCAS), Home Department, have opined that the report of the DG & IGP has been received and the matter may be closed. At paragraph-23 of the order sheet, it is stated that one Smt. Thungamma and Sri Gurunatha Gowda have filed Writ Petition No. 58183/2017 before the Dharwad Bench of High Court of Karnataka, praying to hand over the further investigation in the matter, to the CBI. After hearing at length, the writ petition came to be dismissed by the order dated 1.3.2019, holding that since the matter is pending adjudication before the trial Court, it is not proper to hand over the investigation to the CBI. At paragraph-30 of the order sheet, it is stated that before the IV Additional District & Sessions Judge, Dharwad, the matter has been posted to 26.8.2019 for orders on the application filed under Section 319 of the Code of Crimin....
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....y the local M.P. for referring the matter to CBI, opinion of the learned Advocate General and all other materials are considered by the Government by applying its mind and after satisfying that further investigation in Crime No. 135/2016, registered for the offence punishable under Section 302 of IPC in Dharwad Sub-Urban Police Station, need to be handed over to the CBI, in order to meet the ends of justice, the impugned Government Order dated 6.9.2019 came to be issued by order & in the name of the Governor of Karnataka, which reads as under: "PROCEEDINGS OF GOVERNMENT OF KARNATAKA Subject: Entrusting the Investigation of Murder Case of Sri Yogish Gowda, Member of Zilla panchayat, Dharwad to Central Bureau of Investigation. Read: Note No. CS/642063/2019, dated: 13.08.2019 from Chief Secretary. Preamble: 1. A Complaint was lodged in Dharwad Sub-Urban Police Station vide Crime No. 135/2016 u/s. 302 of Indian Penal Code regarding murder of Sri Yogish Gowda, Member of Zilla Panchayat, Dharwad on 15.06.2016. Investigation was carried out by Jurisdictional Police and based on evidence collected during investigation a Charge sheet has been submitted to Jurisdictional Court, und....
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....with regard to issuance of Government Order dated 6.9.2019 to the IV Addl. District & Sessions Judge, Dharwad, where the matter is pending for trial. 131. No prejudice has been caused to the petitioners, for the reason that they can certainly contest the veracity of the documents and also cross-examine the additional witnesses sought to be examined on behalf of the prosecution. It cannot be in dispute that a fair trial envisages production of all relevant material before the court for unearthing the truth of the matter and this objective cannot be scuttled by taking a narrow view of the matter at the instance of the accused. The petitioners are not put to any prejudice by supplementary charge sheets and additional documents produced. In the present case, the witnesses relevant to such documents are permitted to be examined. Therefore, the contention of the learned counsel for the petitioners that it amounts to res judicata, in view of the earlier order passed by the learned Single Judge of this Court, rejecting the request of the complainants to refer the matter to CBI, cannot be accepted. It is relevant to state at this stage that the said writ petition came to be filed by mother....
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.... Officer of the 2nd respondent/CBI continued further investigation, collected the evidence and filed the supplementary charge sheets and the competent Court took the cognizance and all the petitioners and others found to be accused persons. The investigation done by the local Investigating Officers, ignoring the relevant evidence on record and subsequently, they themselves become Accused Nos. 19 and 20 in the case. This cannot be pleaded as bar for further investigation of Accused, in view of rejection of the application by the learned Single Judge under Section 319 of the Code of Criminal Procedure. 133. Our view is fortified by the judgment of the Hon'ble Supreme Court in the case of Hardeep Singh v. State of Punjab reported in (2014) 3 SCC 92, wherein at paragraph-117.1, it is held as under: 117.1. In Dharam Pal case [Dharam Pal v. State of Haryana, (2014) 3 SCC 306 : AIR 2013 SC 3018], the Constitution Bench has already held that after committal, cognizance of an offence can be taken against a person not named as an accused but against whom materials are available from the papers filed by the police after completion of the investigation. Such cognizance can be taken unde....
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....equisite for taking of cognizance, it is not possible to say that cognizance on an invalid police report is prohibited and is therefore a nullity. Such an invalid report may still fall either under clause (a) or (b) of Section 190(1), (whether it is the one or the other we need not pause to consider) and in any case cognizance so taken is only in the nature of error in a proceeding antecedent to the trial. To such a situation Section 537 of the Code of Criminal Procedure which is in the following terms is attracted: "Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered on appeal or revision on account of any error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during trial or in any enquiry or other proceedings under this Code, unless such error, omission or irregularity, has in fact occasioned a failure of justice." If, therefore, cognizance is in fact taken, on a police report vitiated by the breach of a mandatory provision relating to investigation, there can be no doubt that the result of the ....
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....ya Pradesh v. Mubarak Ali, that the statutory safeguards under Section 5-A must strictly be complied with for they are conceived in public interest and were provided as a guarantee against frivolous and vexatious proceedings. A Magistrate cannot surrender his discretion to a police officer but must exercise it having regard to the relevant material made available to him at the stage of granting permission. He must also be satisfied that there is reason owing to exigencies of the administrative convenience to entrust a subordinate officer with the investigation. It is further observed therein that it is desirable that the order giving the permission should ordinarily in the face of it disclose the reasons for giving permission. The order giving permission under Section 5-A in this case does not give any reason. On the application submitted by PW 17 the learned Magistrate merely ordered "Permission granted". PW 17 did not mention in his application any special reason for permitting him to investigate the case unless we consider the statement in the application "Today is the date fixed for issuing the fit certificate: after receiving a bribe money of Rs. 5 from him" as impliedly a gro....
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....estigation of the concerned Police Station case No. 159 of 9-3-1993 in the District of Dhanbad, under Sections 457, 436, 427, 201 and 120-B, Penal Code, 1860 and conspiracy arising out of the same and any other offence committed in course of the same. The notification of 26-10-1994 is issued by the Government of India, Ministry of Personnel in exercise of the powers conferred by sub-section (1) of Section 5 read with Section 6 of the Delhi Special Police Establishment Act, 1946 whereby the Central Government with the consent of the State Government of Bihar in their notification dated 2-6-1994 extended the powers and jurisdiction of the members of the Delhi Special Police Establishment to the whole of the State of Bihar for investigation of offences under Sections 457, 436, 427/120-B and 201 IPC and Section 4 of the Prevention of Damage to Public Property Act, 1984 registered at Dhanbad Police Station, Dhansar, Bihar in their case No. 159 dated 9-3-1993 and any other offences, attempts, abetment and conspiracy in relation to or in connection with the said offence committed in the course of the same transactions or arising out of the same fact or facts in relation to the said case. ....
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....herefore, it would be proper for the writ petitioner or even the public to come forward to say that if the investigation carried out by the police personnel of the State of Gujarat is done, the writ petitioner and their family members would be highly prejudiced and the investigation would also not come to an end with proper finding and if investigation is allowed to be carried out by the local police authorities, we feel that all concerned including the relatives of the deceased may feel that investigation was not proper and in that circumstances it would be fit and proper that the writ petitioner and the relatives of the deceased should be assured that an independent agency should look into the matter and that would lend the final outcome of the investigation credibility however faithfully the local police may carry out the investigation, particularly when the gross allegations have been made against the high police officials of the State of Gujarat and for which some high police officials have already been taken into custody. 60. Therefore, in view of our discussions made hereinabove, it is difficult to accept the contentions of Mr. Rohatgi, learned Senior Counsel appearing for....
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....is made. Casting of any such obligation on the court would only result in encumbering the court with the burden of searching for all the potential accused to be afforded with the opportunity of being heard. As the law does not require it, we would not burden the Magistrate with such an obligation. 141. The Hon'ble Supreme Court in the case of Rama Chaudhary v. State of Bihar, reported in (2009) 6 SCC 346 while considering the provisions of Section 173(8) of the Code of Criminal Procedure held at paragraphs - 15 to 22 as under: 15. Among the other sub-sections, we are very much concerned about sub-section (8) of Section 173 which reads as under: "173. (8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as....
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....ove legal principles, the order dated 19-2-2008 of the trial court summoning the witnesses named in the supplementary charge-sheet cannot be faulted with. 21. It is true that after the enquiry and investigation, charges were framed on 11-3-2004 and thereafter in the course of the trial about 21 witnesses were examined. In the meantime, the police submitted supplementary charge-sheet with certain new materials and on the basis of supplementary charge-sheet, the prosecution filed an application on 12-1-2008 in the pending Sessions Trial No. 63 of 2004 before the trial court for summoning the persons named in the charge-sheet for their examination as prosecution witnesses. On a careful perusal of the application, the trial court by an order dated 19-2-2008, allowed the same and has summoned those witnesses named in the supplementary charge-sheet. 22. The law does not mandate taking prior permission from the Magistrate for further investigation. It is settled law that carrying out further investigation even after filing of the charge-sheet is a statutory right of the police (vide K. Chandrasekhar v. State of Kerala [(1998) 5 SCC 223 : 1998 SCC (Cri) 1291]). The material collected i....
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....ctim. The purpose of a criminal trial is to ascertain the truth about the allegations levelled against the accused persons and it is not just about over technicalities and over-zealous protection of rights available to the accused. A criminal trial is to be conducted in a fair manner and has to be undertaken as an objective and unbiased search for the truth so that justice is done to the stake holders i.e., the accused, the prosecution and the victim, avoiding injustice in the process and also in the interest of justice and in furtherance of search of truth that such materials are placed before the learned Sessions Judge. 145. It is relevant to quote the words from the case of JENNISON vs. BAKER reported in 1972 (1) All.ER.997, wherein it is held that: "the law should not be seen to sit by limply, while those who defy it go free, and those who seek its protection lose hope" 146. It is well settled that the trial should not be victim centric, forgetting the valuable rights available to the accused, but, when the relevant material becomes available in accordance with law before the trial Court, the accused cannot be heard to say that the same cannot be looked into for a fair tria....
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....ss or insanity violates Article 21 of the Indian Constitution and that such mental illness or insanity would be a supervening circumstance meriting commutation of the death sentence to life imprisonment. In paragraph-20 of the above judgment, the Hon'ble Supreme has recorded a finding which reads as under: 20. The aforesaid ruling came to be questioned in Dagdu v. State of Maharashtra [Dagdu v. State of Maharashtra, (1977) 3 SCC 68 : 1977 SCC (Cri) 421], wherein a similar question came before this Court. This Court, while repelling the submission of the counsel for the accused therein, who argued that the ratio in Santa Singh case [Santa Singh v. State of Punjab, (1976) 4 SCC 190 : 1976 SCC (Cri) 546] mandated compulsory remand of the case to the trial court, held as under : (SCC p. 89, paras 79-80) "79. But we are unable to read the judgment in Santa Singh [Santa Singh v. State of Punjab, (1976) 4 SCC 190 : 1976 SCC (Cri) 546] as laying down that the failure on the part of the court, which convicts an accused, to hear him on the question of sentence must necessarily entail a remand to that court in order to afford to the accused an opportunity to be heard on the question ....
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....ng and rape of a seven-year-old girl child under Sections 363 and 366 IPC. It may be noted here itself that in light of his two prior convictions, the trial court also gave him an opportunity to be heard on the question of Section 75 IPC, which pertains to enhance punishment for certain offences under Chapter XII or XVII IPC after previous conviction, but the factum of these convictions was also not contested by the petitioner. 43. Before the High Court as well, further material was brought on record by the petitioner regarding his discharge in one case related to offences of the same nature, which the Court found to not be in the nature of a mitigating circumstance. The High Court was of the opinion that the dependency of aged parents could also not be considered as a mitigating circumstance to begin with, and that the accused was not young enough for his age to be considered as a mitigating circumstance. The High Court noted the absence of any extreme mental or emotional disturbance leading to the commission of the offence, and observed that given the past offending history of the accused, there was no hope of his reform or rehabilitation. The Court also noted the barbaric natu....
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.... investigation is warranted, the hands of the investigating agency or the court should not be tied down on the ground that further investigation may delay the trial, as the ultimate object is to arrive at the truth. 12. Sub-section (8) of Section 173 of the Code permits further investigation, and even dehors any direction from the court as such, it is open to the police to conduct proper investigation, even after the court took cognisance of any offence on the strength of a police report earlier submitted. All the more so, if as in this case, the Head of the Police Department also was not satisfied of the propriety or the manner and nature of investigation already conducted. 13. In Ram Lal Narang v. State (Delhi Admn.) [(1979) 2 SCC 322 : 1979 SCC (Cri) 479 : AIR 1979 SC 1791] it was observed by this Court that further investigation is not altogether ruled out merely because cognisance has been taken by the court. When defective investigation comes to light during course of trial, it may be cured by further investigation, if circumstances so permitted. It would ordinarily be desirable and all the more so in this case, that the police should inform the court and seek formal perm....
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....In view of the fact that subsequent investigation was conducted in pursuance of the Government Order passed by the State Government entrusting the matter to the CBI, filing of the supplementary charge sheets and taking cognizance of the final report submitted by the investigating officer by the Court after application of mind and overt acts against the accused persons particularly accused No. 15, this is not a fit case to exercise discretionary powers under Articles 226 and 227 of the Constitution of India to interfere with the Government Order entrusting the matter for further investigation by the CBI and on that ground also, the writ petitions filed by the accused persons are liable to be rejected. 152. Though the learned Senior Counsel for accused No. 1 relied upon the dictum of the Hon'ble Supreme Court in the case of State of Tamil Nadu vs. State of Kerala and Another reported in (2014) 12 SCC 696 with regard to separation of powers, wherein it was held that the legislature cannot declare any decision of a court of law to be void or of no effect. It can, however, pass an amending Act to remedy the defects to the effect that the order passed by the State Government entrust....
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....ment relied upon by the learned Senior Counsel for accused No. 5 is State of Punjab vs. Bhag Singh reported in (2004) 1 SCC 547 with regard to maintaining judicial discipline to abide by declaration of law by this Court, cannot be forsaken, under any pretext by any authority or Court, be it even the Highest Court in a State, oblivious to Article 141 of the Constitution of India, 1950. The proposition in the said case is in consonance with Article 141 of the Constitution of India. Therefore, any decision rendered by the Hon'ble Supreme Court under Article 141 of the Constitution of India is binding on the citizens including the High Court and we have no quarrel with the same, but the facts of the said case are entirely different and the said decision has no application to the facts and circumstances of the present case. 155. With regard to reliance placed by the learned Senior Counsel for accused No. 5 in the case of State of West Bengal vs. Committee for Protection of Democratic Rights reported in (2010) 3 SCC 571 we have no quarrel with the laid down by the Hon'ble Supreme Court holding that the High Courts or Supreme Court, being the protectors of the civil liberties of ....
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....the writ petition holding that no such material was made by the petitioners-complainants which was upheld by the Hon'ble Supreme Court. As such, the case was adjudicated on merits of the case in Crime No. 135/2016. Merely because the prayer sought for in Writ Petition Nos. 58183-184/2017 which was for entrustment of the matter to the other agency was rejected by the learned Single Judge of this Court and confirmed by the Hon'ble Supreme Court, that does not mean that, on the subsequent request made by the complainants, the State Government should not exercise its sovereign powers in the interest of justice in order to prevent abuse of law. Therefore, the said judgment has no application to the facts and circumstances of the present case. 158. In the case of Bhagat Ram vs. State Of Rajasthan reported in (1972) 2 SCC 466 particularly paragraph-13 relied upon by the learned Senior Counsel for accused No. 5 to the effect that the principles of res judicata is also applicable to criminal proceedings and it is not permissible in the subsequent stage of the same proceedings or in some other subsequent proceedings to convict a person for an offence in respect of which an order for....
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....ied upon the judgment of the Hon'ble Supreme Court in the case of Vinay Tyagi vs. Irshad ali alias Deepak and Others reported in (2013) 5 SCC 762 particularly paragraphs-22 and 23 with regard to further investigation where it is held that there is no question of fresh investigation or re-investigation or de nova investigation under the provisions of Section 173(8) of the Code of Criminal Procedure. Admittedly, in the present case, the entrustment of the case to the 2nd respondent-CBI for "further investigation" was handed over by the State Government by the impugned order dated 6.9.2019 only for the purpose of further investigation and the same is permissible in terms of the provisions of Section 173(8) of the Code of Criminal Procedure, in view of the fact that, during the pendency of the trial, it has come into light that some of the material witnesses-police officials, including previous investigating officers, and documents have been ignored by the investigating Officer and real culprits have been left out. Admittedly, after investigation, the supplementary charge sheets are already filed and the matter is now posted for further trial. Therefore, the said judgment has no ap....
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.... in at paragraphs 12, 13, 25 and 26 has held as under: "12. It is submitted that as held by this Court in the case of XYZ (Supra) when there are serious triable allegations in complaint it is improper to quash the FIR in exercise of inherent powers of High Court under Section 482 Cr.P.C. 13. It is further submitted that the High Court has failed to appreciate and consider that the civil proceedings were initiated initially by Munni Devi and thereafter the accused No. 2 filed the suit only for permanent injunction and no suit for specific performance has been filed. It is submitted that as such there are very serious allegations of forgery of the joint notarized document dated 27.10.2010 by which the accused have alleged to have given Rs. 25 lakhs to Munni Devi. It is submitted that the High Court has failed to appreciate and consider the fact that in the present case there are two documents of the very date i.e. 27.10.2010, one is registered one in which the sale consideration is stated to be Rs. 25 lakhs and in another document of same date dated 27.10.2010, the sale consideration is stated to be Rs. 35 lakhs and it is stated that Rs. 25 lakhs have been paid to Munni Devi. It ....
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.... be considered in the civil proceedings. There the High Court has committed an error. Even the High Court has failed to notice that another FIR has been lodged against the accused for the offences under Sections 467, 468, 471 IPC with respect to the said alleged joint notarized affidavit. Even according to the accused the possession was handed over to them. However, when the payment of Rs. 25 lakhs as mentioned in the joint notarized affidavit is seriously disputed and even one of the cheques out of 5 cheques each of Rs. 2 lakhs was dishonoured and according to the accused they were handed over the possession (which is seriously disputed) it can be said to be entrustment of property. Therefore, at this stage to opine that no case is made out for the offence under Section 406 IPC is premature and the aforesaid aspect is to be considered during trial. It is also required to be noted that the first suit was filed by Munni Devi and thereafter subsequent suit came to be filed by the accused and that too for permanent injunction only. Nothing is on record that any suit for specific performance has been filed. Be that as it may, all the aforesaid aspects are required to be considered at t....