TaxTMI 
TaxTMI 
2021 (10) TMI 1404
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....ii) Writ Petition No. 15828/21 is filed by Accused No. 15 - Vinay 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....
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....t time, the deceased had interfered and threatened the Accused No. 1 that, in the event 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 indep....
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.... registered with the Dharwad Sub-Urban Police Station. Thereafter, the 2nd respondent CBI without 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 Wri....
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....ourt, it was renumbered as S.C. No. 50/2017 and presently pending before the Special Court (CCH-82), 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. ....
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....investigation and investigation has not been conducted in a fair manner and on being satisfied on the requirements 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 wer....
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....ate Government relied upon several judgments of the Hon'ble Supreme Court. III - Objections filed by the CBI in W.P. No. 51012/2019 16. The 2nd 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 provision....
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.... Procedure, it was intimated to the jurisdictional Court about CBI conducting further investigation of the case. Therefore, the contention of the petitioners 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....
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....urt has taken the cognizance of the same. As there are subsequent developments upon registration of the main FIR, the present writ petitions challenging the FIR do 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....
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....ed by the CBI. Accordingly, the accused persons, who were apprehended, approached this Court challenging the sanction order as well as the FIR filed against them. 23. 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 c....
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....lendor motor cycle equipped with weapons in their jackets and moved to and fro on the road around the Gym in the motor cycle and finally by 7.34 a.m. again came back to the 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, acc....
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.... a month prior to the murder. It was further revealed that during the Zilla Panchayat Meeting dated 23.4.2016 there were verbal altercations and heated exchanges between them 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 w....
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....ot be sustained. The learned Counsel would further contend that the 1st respondent-State Government ought not to have issued the Notification according sanction to conduct further investigation 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 t....
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....done without consent of the jurisdictional Court. The police will have to seek permission of the Court to continue 'further investigation' and file supplementary charge sheet as held 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 peti....
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....760-61/2019 on 22.7.2019. However, an application under Section 319 of Cr.P.C., was filed by Smt. Tungamma, mother of the deceased on 16.7.2019 which came to be rejected on 26.8.2019. He would further contend that there was change of 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 s....
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....ey are blatant violation of Article 21 of the Constitution of India leading to illegal arrest of the petitioner and depriving liberty of the petitioner without following the procedure established by law. 37. The learned Senior Counsel further 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 conducte....
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.... 39. In support of his contentions, the learned Senior Counsel relied upon the following dictums of the Hon'ble Supreme Court: a) Pritam Singh and Another vs. The State of Punjab reported in AIR 1956 SC 415, paragraphs 15 and 20 (Res judicata 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....
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....021 (SC); VIII - Writ Petition No. 16088/2021 filed by accused No. 16 - Chandrashekar Indi Arguments advanced by Dr. Ashwani Kumar, learned Senior Counsel along with Sri H.S. Chandramouli, learned Senior Counsel for petitioner 40. Dr. Ashwani Kumar, learned Senior Counsel for the petitioner-accused No. 16 contended that the impugned order dated 6.9.2019 passed 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 pa....
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....t by the State Government in terms of Section 6 of the DSPE Act to the CBI does not arise. He would further contend that prior approval of the concerned Court for further investigation is mandatory, but the same has not been done in the present case as held by the Hon'ble Supreme Court in the case of Vinay Tyagi stated supra [(2013) 5 SCC 762]. So also in the case of 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 Pa....
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....r Section 319 of Cr.P.C. was filed by the brother of the deceased seeking to array the petitioner and another as accused persons in S.C. No. 50/2017, the same was dismissed by the trial Court which has reached finality. Hence, the impugned order passed by the State Government entrusting the matter to the 2nd respondent Agency under the provisions of Section 173(8) of Cr.P.C., for further investigation is 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 com....
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....he 2nd respondent for further investigation as the same is impermissible and the same has been done with political vengeance and hence, the same cannot be sustained. Therefore, he sought to allow the writ petition. 49. In support of his contentions, the learned Senior Counsel relied upon the following dictums of the Hon'ble Supreme Court: a) Vinay Tyagi vs. Irshad Ali Alias Deepak and Others reported in (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 Ge....
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....21 as per Annexures-R6 and R7 to the statement of objections filed by the State. He further contended that under the provisions of Section 319 Cr.P.C., an application was filed by the complainants to implead accused No. 19, the investigating officer in the case, who had subsequently conspired to dilute the case. Since at that time, as no evidence or material was placed before the Court against accused No. 19, the learned Single Judge of this 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 co....
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....f executive powers" by the State Government. This ordinary exercise of executive power is an independent power which can be exercised at any stage by the State Government and will not have any impact or create any imbalance in the federal structure. 55. It is further contended that separation of powers is a part of the basic structure of the Constitution, the 'ordinary' executive power of the State Government under Section 6 and 'extraordinary 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 t....
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....21. 58. It is further contended that the interim order dated 21.11.2019 granted by the learned Single Judge of this Court in the present writ petitions prevented the CBI from conducting further investigation and the said interim order was stayed by the Hon'ble Supreme Court on 20th February 2020 in SLP Nos. 5760-61/2019 and the same is ordered to be continued till the writ petitions are decided. The action taken by the CBI are not the subject matter of 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 ....
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....ss can be said to have vitiated even if it is assumed (for the sake of arguments) that the investigation conducted by the CBI was irregular either on the ground of legality of the order under Section 6 or on the ground of stage at which the further investigation took place. 63. It is further contended that this Court is exercising its extraordinary discretionary of the prerogative writ jurisdiction. It is settled position in law that even if it is assumed that petitioners 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 an....
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....vt. Ltd., vs. State of Gujarat reported in; 66. Sri Prabhuling K. Navadgi, learned Advocate General appearing for respondent No. 1/State Government in other writ petitions while justifying the order passed by the State Government contended that in pursuance of the interim order dated 20.2.2020 granted by the Hon'ble Supreme Court staying operation of the order dated 19.11.2010 passed by the learned Single Judge of this Court in writ petitions and permitting the investigating officer to proceed with the investigation, after completion of 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 ....
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....n 173(8) of Cr.P.C. came to be filed before the jurisdictional Court soon after the 2nd respondent communicated the aforesaid order to the 1st respondent under the provisions of Section 5 of the DSPE Act intimating the Court that the CBI-2nd respondent taking up further investigation of the crime in question. Since the jurisdictional Court has not rejected the memo, it was presumed that prior permission was accorded for necessary investigation. Therefore, no statutory permission was required for further investigation in view of the provisions of 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 parag....
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....10046/2019 and the same came to be allowed and remanded and after remand, the jurisdictional police have filed FIR ending in filing of 'B' report and the same was the subject matter of PCR 236/2019 pending before the Principal Civil Judge, Dharwad. He would further contend that after entrusting the matter to the 2nd respondent-CBI by the State Government, CBI arrested accused persons as they found material against them and consequently, after investigation charge sheets are filed, Court has taken cognizance and now at this stage, it is not open for this Court to interfere 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 - Accu....
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....o attended the said meeting as he was the Member of Zilla Panchayat at the relevant point of time. In the said meeting, there was a serious altercation between Mr. Vinay Kulkarni (Accused No. 15) and the deceased Yogishgouda Goudar regarding supply of drinking water in the district. 76. It is alleged in the present writ petitions that though there was threat to the deceased Yogishgouda Goudar, he had ignored the threatening letters and had been going on with his day to day affairs, which included attending Gym at 7.30 a.m. in the morning. It was further alleged that, on 15.6.2016, when the deceased 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 ....
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....tion that FIR was registered in Crime No. 135/2016 on 15.6.2016 at 9.30 a.m. and within a span of one hour, the Home Minister statement was published in the News channel immediately that the murder was due to the land disputes and it shows it was fully planned murder with political influence and accused were not traced till 17.7.2016, Even the Investigating Officer confirmed on 15.6.2016 that still no reason was found about the murder. The fact that the Home Minister could make such a statement itself created a doubt about the fair investigation and Accused Nos. 1 to 5 were arrested on 17.6.2016 at 6.30 a.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 t....
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....rial on record to show that the Investigating Officer has committed an error in conducting the investigation and shabby investigation is conducted and in the absence of prima facie material to come to the conclusion that there was unfair investigation, this Court cannot exercise its writ jurisdiction to order for CBI investigation. Ultimately, this Court held that there is no material to invoke Section 173(8) of the Code of Criminal Procedure asking the Investigating Officer to investigate and file additional charge sheet and having considered the contention of the petitioners therein, only the scope of Section 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 dismi....
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....ed 21.11.2019, while issuing notice to the 2nd respondent - CBI, has granted interim relief staying all further proceedings pursuant to Government Order dated 6.9.2019 and FIR dated 24.9.2019, till the next date of hearing. Subsequently, the interim order was extended from time to time. Aggrieved by the said interim order passed by the learned Single Judge of this Court, the CBI filed SLP (Crl.) 1348/2020 before the Hon'ble Supreme Court. The Hon'ble Supreme Court by the order dated 20.2.2020 while issuing notice in the Special Leave Petition, as an interim measure, directed that there would be stay of operation of 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 ....
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.... to the parties are left open to be advanced before and considered by the High Court. With these observations, the Special Leave Petition (Crl.) No. 1348 of 2020 stands disposed of. Pending applications, if any, also stand disposed of." (emphasis supplied) The said order passed by the Hon'ble Supreme Court binds all the parties. 89. On careful perusal of the material documents including the objections filed by the respondents, it clearly depicts that the deceased Yogishgouda Goudar was a member of the Zilla Panchayat from Bharatiya Janatha Party ('BJP') and the accused, especially Accused No. 15 was in the congress party and there was a verbal altercation between the deceased and accused 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 prosec....
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....d Government Order, in view of the order passed by this Court dated 1.3.2019 in the earlier writ petition rejecting the prayer for entrustment of the matter to CBI and confirmed by the Hon'ble Supreme Court. There is a allegation and counter allegation between the two political parties. Admittedly Accused No. 15 and other accused persons belong to Congress party as alleged by the respondents in the Statement of objections as well as in the submissions made by the learned counsel for the parties and the deceased Yogishgouda Goudar belong to BJP as alleged in the grounds of the present writ petition and as contended by the learned counsel for the petitioners/accused persons, which clearly indicates that the political parties are 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 constitu....
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....purpose. The elbow room available to the legislature in classification depends on the context and the object for enactment of the provision. The existing conditions in which the law has to be applied cannot be ignored in adjudging its validity because it is relatable to the object sought to be achieved by the legislation. Criminalisation of politics is the bane of society and negation of democracy. It is subversive of free and fair elections which is a basic feature of the Constitution. Thus, a provision made in the election law to promote the object of free and fair elections and facilitate maintenance of law and order which are the essence of democracy must, therefore, be so viewed. More elbow room to the legislature for classification has to 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 t....
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....ce in the SLP and as an interim measure, directed that there would be stay of operation of the order dated 21.11.2019 passed by this Court. Resultantly, the investigation was conducted and carried out by the CBI. After investigation, filed the supplementary charge sheet on 20.5.2020 adding Accused Nos. 7 to 14 in the array of accused and the cognisance was taken by the competent Court. Thereafter, another supplementary charge sheet was filed on 30.1.2021 adding Accused Nos. 15 to 17. Cognizance in respect of the said charge sheets were taken on 7.6.2021. Since Accused Nos. 19 and 20 are public servants, sanction to prosecute them has also been obtained by the CBI. In these writ petitions, none of the petitioners have challenged the charge sheets filed 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....
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....Goudar and Accused No. 15, in a Zilla Panchayat meeting, a month and half prior to the murder. The said Zilla Panchayat meeting was held on 23.4.2016 and it was chaired by Mr. Vinay Kulkarni (Accused No. 15), as in-charge Minister of Dharwad district. It is revealed that the deceased YogishGouda has also attended the said meeting representing his constituency. The said fact has been confirmed by the witnesses (CW.41 to CW.43) who attended the meeting. The further investigation revealed that Mr. Vinay Kulkarni (Accused No. 15) had conspired with his close associates - Accused Nos. 1 and 16 and others for the murder of the deceased Yogishgouda Goudar following the Zilla Panchayat meeting on 23.4.2016. The accused persons acted as prime conspirators of the 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 t....
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....anged during trial. The material also revealed that during the course of further investigation by CBI, it has come to light that some of the Police officials including previous Investigating Officer are also found to be involved in the case, were found to have taken gratification to scuttle the investigation and they have been arrayed as Accused Nos. 19 and 20. Accused No. 19 is the previous Investigating Officer and Accused No. 20 is the Supervisory Officer of Accused No. 19. After considering the charge sheet material, the Government of Karnataka has accorded sanction to prosecute the said accused persons as well and departmental enquiry has also been initiated against them. The material on record clearly depicts that there are overt acts against the accused 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, w....
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....estigation. 103. Admittedly, in the present case, the 2nd respondent has informed the Court by filing a memo and subsequently supplementary charge sheets also filed and the competent Court took the cognizance, thereby a permission was granted by the Court by necessary implication as held by the Hon'ble Supreme Court in the case of State of A.P. v. A.S. Peter, reported in (2008) 2 SCC 383 at paragraphs 4 and 17, which reads as under: 4. Before carrying out the said investigation, the Inspector of Police, CID filed a memo in the said court with the prayer that the matter be adjourned. Although it does not appear that any express permission was granted for carrying out further investigation, the prayer of adjournment was allowed in terms of the said memo. Further investigation 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 Ch....
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....ency, State or place, in which the Act shall be ordered to take effect. Section 3 of the Indian Police Act provides as under: 3. The superintendence of the police throughout a general police district shall vest in and, shall be exercised by the State Government to which such district is subordinate; and except as authorised under the provisions of this Act, no person, officer or court shall be empowered by the State Government to supersede or control any police functionary. Section 12 confers power on the Inspector General of Police, subject to the approval of the State Government, to make rules and it was stated that the Bihar Police Manual, 1978, has been issued in exercise of the power conferred by Section 12. Section 22 provides that every police officer shall, for all purposes in the Act contained, 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 cove....
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....ation thereby enjoying all powers of an officer in charge of a police station to further investigate the case. Such a situation would be covered by the combined reading of Section 173(8) with Section 36 of the Code. Such power is claimed as flowing from the power of superintendence over police to direct a police officer to do or not to do a certain thing because at the stage of investigation the power is enjoyed as executive power untrammelled by the judiciary. It was incidentally submitted that it is an undisputed dictum of law that when a statute requires a thing to be done in a certain manner it shall be done in that manner alone and the court would not expect its being done in some other manner (see State of Gujarat v. Shantilal Mangaldas [(1969) 1 SCC 509 : (1969) 3 SCR 341, 372]). Expounding the submission it was stated that 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(....
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....ion; otherwise that provision would have been a short answer to the contention raised on behalf of Respondent 1. 105. A careful reading of the impugned Government Order dated 6.9.2019 clearly depicts that considering the entire material on record, the Government was satisfied that further investigation of Crime No. 135/2016 under Section 302 of IPC of Dharwad Sub-Urban Police Station, Dharwad was needed to be handed over to CBI in order to meet the ends of justice. The order also depicts that sanction accorded by the Government to the CBI under Section - 6 of Delhi Special Police Establishment Act, 1946 only for further investigation and therefore, the contention of learned counsel for the petitioners that it was for re-investigation of the entire matter, cannot be accepted. The Government Order clearly depicts that it is only a further investigation, 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 orde....
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....ent in whole State of Karnataka for further investigation of Crime No. 135/2016 under Section 302 IPC lodged in Dharwad Sub-Urban Police Station, Dharwad. The provisions of Section 6 of the Delhi Special Police Establishment Act, balances the power of the Central Government to get offences investigated through central agency despite the exclusive domain of the State Government for such investigation being covered by a Entry 2 of List II. 108. The Hon'ble Supreme Court while considering the provisions of Section 6 of the Delhi Special Police Establishment Act and Lists under the Seventh Schedule of the Constitution of India, in the case of State of W.B. v. Committee for Protection of Democratic Rights, reported in (2010) 3 SCC 571, has held at paragraphs - 13, 16, 17, 21, 36, 39, 43, 68(ii)(v)(vi) and (vii) and 70 as under: 13. Learned counsel went 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 situat....
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.... rights guaranteed by the State primarily to citizens and in some cases to every resident of India and Part XI thereof, which pertains to the relations between the Union and the States. 36. Having noticed the scope and amplitude of Sections 5 and 6 of the Special Police Act, the question for consideration is whether the restriction imposed on the powers of the Central Government would apply mutatis mutandis to the constitutional courts as well. As stated above, the main thrust of the argument of Shri K.K. Venugopal, learned Senior Counsel, is that the course adopted by the High Court in directing CBI to undertake investigation in the State of West Bengal without the consent of the State is incompatible with the federal structure as also the doctrine of separation of powers between the three organs of the State, embodied in the Constitution even when the High Court, on the material before 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 legislatu....
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....nd impartial investigation against any person accused of commission of a cognizable offence, which may include its own officers. In certain situations even a witness to the crime may seek for and shall be granted protection by the State. (v) Restriction on Parliament by the Constitution and restriction on the executive by Parliament under an enactment, do not amount to restriction on the power of the Judiciary under Articles 32 and 226 of the Constitution. (vi) If in terms of Entry 2 of List II of the Seventh Schedule on the one hand and Entry 2-A and Entry 80 of List I on the other, an investigation by another agency is permissible subject to grant of consent by the State concerned, there is no reason as to why, in an exceptional situation, the Court would be precluded from exercising the same power which the Union could exercise in terms of the provisions of the statute. In our opinion, exercise of such power 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 ....
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....ions 5 and 6 of the Delhi Special Police Establishment Act, 1946 in the case of Fertico Mktg. & Investment (P) Ltd. v. CBI, reported in (2021) 2 SCC 525, has held at paragraphs 5, 7 and 12 and 16 and 17 and 22 5. The learned Single Judge of the High Court vide his order dated 24-2-2015 [Fertico Mktg. & Investment (P) Ltd. v. CBI, ], framed the following four questions for determination : [Fertico Mktg. & Investment (P) Ltd. case [Fertico Mktg. & Investment (P) Ltd. v. CBI,] "46. ... Q. No. 1.--Whether the investigation conducted by CBI in these bunch of cases is illegal and without jurisdiction for non-compliance with Section 6 of the DSPE Act? If so, its effect? Q. No. 2.--Whether the cases are overwhelmingly and predominatingly of civil nature as purely bases on breach of contract (FSA) and the criminal prosecutions are liable to be quashed? Q. No. 3.--Whether CBI did not follow the doctrine of parity in filing the criminal prosecutions 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 S....
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....he Central Government may by order extend to any area (including Railway areas) in a State, not being a Union Territory, the powers and jurisdiction of members of the Delhi Special Police Establishment for the investigation of any offences or classes of offences specified in a notification under Section 3. (2) When by an order under sub-section (1) the powers and jurisdiction of members of the said Police Establishment are extended to any such area, a member thereof may, subject to any orders which the Central Government may make in this behalf, discharge the functions of a police officer in that area and shall, while so discharging such functions, be deemed to be a member of the police force of that area and be vested with the powers, functions and privileges and be subject to the liabilities of a police officer belonging to that police force. (3) Where any such order under sub-section (1) is made in relation to any area, then, without prejudice to the provisions of sub-section (2), any member of the Delhi Special Police Establishment of or above the rank of Sub-Inspector may, subject to any orders which the Central Government may make in this behalf, exercise th....
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....73] and Lumbhardar Zutshi v. R. [Lumbhardar Zutshi v. R., (1949-50) 77 IA 62 : 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." It could thus be seen that this Court has held that the cognizance and the trial cannot be set aside unless the illegality in the investigation can be shown to have brought about miscarriage of justice. It has been held that the illegality may have a bearing on the question of prejudice or miscarriage of justice but the invalidity of the investigation has no relation to the comp....
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....h Court of Karnataka. The learned Single Judge of this Court while allowing the appeal, has made an observation, which reads as under: "When such application is filed by CW.19 who is charge sheet witness with the allegation of telephonic conversation made with him and caused threat. The said application is also filed through Public Prosecutor and surprisingly, the Government is opposing the same before this Court and the Court below by rejecting the application washed of its hand on technicality and now considered the application on merits and nothing is discussed in the order regarding the substance of the application and not passed the reasoned order and hence, it requires the application has to be considered afresh on merits and requires for reconsideration." Accordingly, this Court set aside the order of rejection dated 9.1.2019 and directed the court below to consider the application afresh in view of the observations made in the judgment and dispose of the same on merits and not on technicality and proceed in accordance with law. In pursuance of the same, the jurisdictional Police filed the FIR and the same ended in filing the B report. That is the subject matter ....
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....gest that the court is obliged to hear the accused before any direction for further investigation is made. In Sri Bhagwan Samardha [Sri Bhagwan Samardha Sreepada Vallabha Venkata Vishwanandha Maharaj v. State of A.P., (1999) 5 SCC 740 : 1999 SCC (Cri) 1047], this Court in para 11 held as under : (Sri Bhagwan Samardha case [Sri Bhagwan Samardha Sreepada Vallabha Venkata Vishwanandha Maharaj v. State of A.P., (1999) 5 SCC 740 : 1999 SCC (Cri) 1047], SCC p. 743) "11. In such a situation the power of the court to direct the police to conduct further investigation cannot have any inhibition. There is nothing in Section 173(8) to suggest that the court is obliged to hear the accused before any such direction 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." 11. Therefore, when the proposed accused against whom the further investigation is sought, namely, Shri Bhaumik is not required to be heard at this stage, there is no que....
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....iling of the supplementary charge sheets or taking cognizance by the competent court, is not challenged by the petitioners (accused persons) in the present writ petitions. Therefore, the contention of learned counsel for the petitioners that once the initial action is not in consonance with law, all subsequent developments including filing of the supplementary charge sheets after investigation by the CBI and taking cognizance are invalid, cannot be accepted. 115. It is well settled that even if the investigation is not conducted by the authorized officer, the trial is not vitiated unless prejudice is shown. Our view is fortified by the dictum of the Hon'ble Supreme Court in the case of R.A.H. Siguran v. Shankare Gowda, reported in (2017) 16 SCC 126, wherein at paragraphs 9 and 10 it is held as under: 9. In H.N. Rishbud v. State (UT of Delhi) [H.N. Rishbud v. State (UT of Delhi), AIR 1955 SC 196 : (1955) 1 SCR 1150 : 1955 Cri LJ 526] the question considered by this Court was whether after the court takes cognizance, trial can be held to be vitiated merely on the ground that investigation was invalid. Answering in the negative, this Court held that if the plea of inva....
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....se (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 trial which follows it cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice. That an illegality committed in t....
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....elevant in this context to observe that even if the trial had proceeded to conclusion and the accused had to make out that there was in fact a failure of justice as the result of such an error, Explanation to Section 537 of the Code of Criminal Procedure indicates that the fact of the objection having been raised at an early stage of the proceeding is a pertinent factor. To ignore the breach in such a situation when brought to the notice of the Court would be virtually to make a dead letter of the peremptory provision which has been enacted on grounds of public policy for the benefit of such an accused. It is true that the peremptory provision itself allows an officer of a lower rank to make the investigation if permitted by the Magistrate. But this is not any indication by the legislature that an investigation by an officer of a lower rank without such permission cannot be said to cause prejudice. When a Magistrate is approached for granting such permission he is expected to satisfy himself that there are good and sufficient reasons for authorising an officer of a lower rank to conduct the investigation. The granting of such permission is not to be treated by a Magistrate as a mer....
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....ng a somewhat similar point was taken unsuccessfully before the Chief Presidency Magistrate. Their Lordships would only be prepared to allow such an argument in an exceptional case. In the present case it was argued that the new ground of appeal raised a question of jurisdiction, and their Lordships permitted the argument to proceed. The argument was that the trial and conviction of the appellants were void because the police investigation which led up to the trial was conducted illegally. This was a non-cognizable case and s. 58(2) of the Bombay City Police Act, 1902, provides that no police officer shall investigate a non-cognizable case without the order of a Presidency Magistrate. There was an order by the Chief Presidency Magistrate in this case, but it was submitted that this order was invalid because the magistrate was bound before making such an order to comply with the requirements of s. 202(1) of the Criminal Procedure Code and he had not done so." 117. The illegality in investigation is curable under the provisions of Section 460 of the Code of Criminal Procedure. The invalidity of the precedent investigation, does not vitiate the result, unless miscarriage of justice....
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....f an individual case may call for.' This decision is a clear authority for the view that further investigation is not altogether ruled out merely because cognizance of the case has been taken by the court; defective investigation coming to light during the course of a trial may be cured by a further investigation, if circumstances permit it." The Court then went on to hold : (SCC pp. 337-38, paras 20-21) "20. Anyone acquainted with the day-to-day working of the criminal courts will be alive to the practical necessity of the police possessing the power to make further investigation and submit a supplemental report. It is in the interests of both the prosecution and the defence that the police should have such power. It is easy to visualise a case where fresh material may come to light which would implicate persons not previously accused or absolve persons already accused. When it comes to the notice of the investigating agency that a person already accused of an offence has a good alibi, is it not the duty of that agency to investigate the genuineness of the plea of alibi and submit a report to the Magistrate? After all the investigating agency has gre....
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.... police to further investigate after cognizance of the case had been taken by the Magistrate. Neither Section 173 nor Section 190 lead us to hold that the power of the police to further investigate was exhausted by the Magistrate taking cognizance of the offence. Practice, convenience and preponderance of authority, permitted repeated investigations on discovery of fresh facts. In our view, notwithstanding that a Magistrate had taken cognizance of the offence upon a police report submitted under Section 173 of the 1898 Code, the right of the police to further investigate was not exhausted and the police could exercise such right as often as necessary when fresh information came to light. Where the police desired to make a further investigation, the police could express their regard and respect for the court by seeking its formal permission to make further investigation." 118. It is to be noted that when the competent Court has already taken the cognizance of the supplementary charge sheets filed by CBI in pursuance of the impugned Government Order dated 6.9.2019 passed by the State Government entrusting the matter to CBI for further investigation and the petitioners having not s....
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....at the interim order dated 20.2.2020 passed in the SLP shall continue to operate. 120. As already stated supra, there are materials against the accused persons including Accused No. 15 - Vinay Kulkarni in the supplementary charge sheet filed after examining 88 witnesses and considering more than 75 documents and now, the learned Judge has taken cognizance and the matter is committed to the Court of Sessions and the matter is posted for further trial. It is not open to contend that the State has no jurisdiction to entrust the matter to CBI and there cannot be further investigation and once the trial commenced, there is no further investigation under the provisions of Section 173(8) of the Code of Criminal Procedure, cannot be accepted. 121. The Hon'ble Supreme Court while considering the provisions of Section 482 of the Code of Criminal Procedure and Article 226 of the Constitution of India, in the case of State of Haryana v. Bhajan Lal reported in 1992 SC Crimes 426, has held at paragraphs 102, 103 and 139 as under: 102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated b....
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....re the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. 103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice. 139. In the light of the above decisions of this Court, we feel that the said observations made in the impugned judgment are unwarranted and the historical anecdote is out of context and inappropriate. We are afraid if such a view is to be judicially accepted and approved, then it will be tantamount to laying down an alarming proposition that an incoming government under all circumstances, should put its seal of approval to all the commissions and omissions of the outgoing government ignoring even ....
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.... of Ganga Dhar Kalita v. State of Assam reported in (2015) 9 SCC 647, ha held at paragraph-11 as under: 11. Having considered the law laid down by this Court, as above, and further considering the facts and circumstances of the case and seriousness of the allegations made against the accused, particularly that one of the persons said to have executed the power of attorney was minor, and another was away from India, in our opinion, even if the civil suit was instituted by the complainant, the High Court committed no error of law in declining to interfere with the criminal proceedings initiated against the appellant in the present case. 124. While considering the provisions of section 482 of the Code of Criminal Procedure, similar view is taken by the Hon'ble Supreme Court in the case of Rishipal Singh v. State of U.P., reported in (2014) 7 SCC 215, wherein at paragraphs 10 and 17 it is held as under: 10. Before we deal with the respective contentions advanced on either side, we deem it appropriate to have a thorough look at Section 482 CrPC, which reads: "482. Saving of inherent powers of High Court.--Nothing in this Code shall be deemed to limit or....
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....e previous Investigating Officer and Accused No. 20 is the Supervisory Officer of Accused No. 19. Therefore, the Government is justified in entrusting the matter to the CBI, an independent agency to conduct a fair trial and investigation. When there is an improper investigation by state police and high Police officials are involved, in order to do complete justice, direction for investigation by an independent and specialized agency like CBI, is warranted. 126. Our view is fortified by the judgment in the case of Narmada Bai v. State of Gujarat, reported in (2011) 5 SCC 79, wherein the Hon'ble Supreme Court held at paragraphs 27, 59, 63, 64 and 65 held as under: 27. Analysis as to Issue (A) The first issue i.e. Issue (A) as in the case on hand also arose in Rubabbuddin Sheikh [ (2010) 2 SCC 200 : (2010) 2 SCC (Cri) 1006]. The factual details therein will be discussed in the later paragraphs. With regard to the similar objection as to further investigation by CBI, this Court considered the following cases: (i) Vineet Narain v. Union of India [(1996) 2 SCC 199 : 1996 SCC (Cri) 264], (ii) Union of India v. Sushil Kumar Modi [(1998) 8 SCC 661 ....
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....n court. On this ground, we have carefully examined the eight action-taken reports submitted by the State police authorities before us and also the various materials produced and the submissions of the learned counsel for both the parties." It is clear that in an appropriate case, particularly, when the Court feels that the investigation by the State police authorities is not in the proper direction as the high police officials are involved, in order to do complete justice, it is always open to the Court to hand over the investigation to an independent and specialised agency like CBI. 59. It is not in dispute that it is the age-old maxim that justice must not only be done but must be seen to be done. The fact that in the case of murder of an associate of Tulsiram Prajapati, senior police officials and a senior politician were accused may shake the confidence of public in investigation conducted by the State police. If the majesty of the rule of law is to be upheld and if it is to be ensured that the guilty are punished in accordance with law notwithstanding their status and authority which they might have enjoyed, it is desirable to entrust the investigation to CB....
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....ujarat and police officers of two other States i.e. Andhra Pradesh and Rajasthan, it would not be desirable to allow the Gujarat State Police to continue with the investigation, accordingly, to meet the ends of justice and in the public interest, we feel that CBI should be directed to take the investigation. 127. It is not in dispute that separation of powers is a part of the basic structure of the Constitution, the "ordinary" executive power of the State Government under Section 6 and 'extraordinary judicial power' of the constitutional courts are mutually exclusive and are not interdependent and there is no particular form to give consent under Section 6 of Delhi Special Police Establishment Act as held by the Supreme Court in the case of M. BALAKRIHNA REDDY vs. DIRECTOR, CENTRAL BUREAU OF INVESTIGATON, NEW DELHI reported in (2008) 4 SCC 409, wherein at paragraph-71 it is held as under: 71. A closer scrutiny of the relevant provisions of the Delhi Act also add credence to the view which we are inclined to take. Section 3 refers to "notification" and requires the Central Government to issue notification specifying offences or class of offences to be investigate....
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....ed No. 15, who was then the Minister of the State Government. In that petition, Accused Nos. 19 and 20, who are Investigating Officer and Supervisory Officer of the Investigating Officer filed objections on behalf of the State Government and opposed the writ petition. The learned Single Judge of this Court found that the petitioners therein have not made out a case to exercise judicial powers for entrustment of the matter to CBI and the accordingly, the said writ petition came to be dismissed and the same has been confirmed by the Hon'ble Supreme Court. XIII - Regarding Notes sheets of the original Government record 130. We have gone through the original Government records, which are made available by the Government Advocate. A careful perusal of the note sheet in C. No. 505227, HD 48 PCB 2016 maintained in the Home Department depicts that, in pursuance of the letter received from the local M.P. addressed to the then Chief Minister, in the matter relating to suspicious murder of Sri Yogishguda, Zilla Panchayat member, Dharwad, the same was forwarded to the opinion of DG & IGP, on 24.8.2016. Since opinion was not received from DG & IGP, a reminder was also issued on 27.12.....
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....isfied that the matter is to be investigated by the CBI. The exercise of the power of entrustment of the matter to CBI is an independent power to be taken by the State Government. The fact that the Hon'ble Court dismissed the writ petition, is not a bar for the State Government to exercise its power. Paragraph-39 of the order sheet depicts that on the basis of the opinion of the learned Advocate General, on 4.9.2019, the file was forwarded to be placed before the Hon'ble Home Minister and the Hon'ble Chief Minister for necessary orders in the matter of entrusting the case to CBI. At paragraph Nos. 41 and 42 of the order sheet, the Hon'ble Home Minister and Hon'ble Chief Minister directed to entrust the matter to CBI. Accordingly, draft Government Order was prepared and placed for approval on 5.9.2019 and the same was approved on 6.9.2019. The Government records also depicts that Sri Rakesh Ranjan, Inspector of Police, CBI: ACB, Bengaluru, addressed letter dated 21.01.2020 to the Additional Chief Secretary to Government, Home Department, requesting to provide certified copy of the representation submitted to State Government by Sri Gurunath Gouda Ningana....
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....n various rulings of Hon'ble Supreme Court of India, the cases under trial in subordinate court may also be entrusted to CBI for further investigation. Hence exercise of the power of entrustment of investigation to CBI is an independent power, of the State Government. The fact that Hon'ble Court dismissed the Writ Petition directing CBI enquiry is not a bar for the State Government to exercise its power. 4. In view of the above, the government is satisfied that further investigation of Crime No. 135/2016 u/s. 302 of IPC of Dharwad Sub-Urban Police Station, Dharwad need to be handed over to Central Bureau of Investigation in order to meet the ends of justice. Hence the following order, GOVERNMENT ORDER NO. HD 48 PCB 2016, BENGALURU, DATED: 06/09/2019. Government of Karnataka hereby accords sanction 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 Indian Penal Code lodged in Dharwad Sub-Urban Police Station, Dharwad. The concerned department officers/official/others shall hand over data/information/....
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....of the petitioners that all the accused persons have been acquitted and their rights have been decided on merits. The provisions of section 173(8) of the Code of Criminal Procedure envisages that nothing in the said 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-section 2 and 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). Therefore, in the peculiar facts and circumstances of the present case and in view of the provisions of Section 173(8) of the Code of Criminal Procedure, question of res judicata as alleged by the counsel for the petitioners would not arise. 132. It is also not in dispute that the brother of the deceased filed the application under Section 319 of the Code of Criminal Procedure, which was rejected by the....
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....hen 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 mere irregularity arises. A defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. No doubt a police report which results from an investigation is provided in Section 190 of the Code of Criminal Procedure as the material on which cognizance is taken. But it cannot be maintained that a valid and legal police report is the foundation of the jurisdiction of the Court to take cognizance. Section 190 of the Code of Criminal Pro....
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....e 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. 136. Our view is also fortified by the judgment of the Hon'ble Supreme Court in the case of Sailendra Nath Bose v. State of Bihar reported in (1968) 3 SCR 563, wherein at paragraph-7 it is held as under: 7. The object of the legislature in enacting Section 5-A was to see that the investigation of offences punishable under Sections 161, 165 or 165-A, IPC as well as those under Section 5 of the Prevention of Corruption Act should be done ordinarily by officers of the rank of Deputy Superintendent or above No. doubt Section 5-A also provides for an alternative procedure. An officer below the rank of Deputy Superintendent can investigate those offences if he obtains the previous permission of a first-class Magi....
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....e rank of a Deputy Superintendent, as laid down by this Court in Munnalal v. State of Uttar Pradesh [AIR 1964 SC 28] and State of Uttar Pradesh v. Bhagwant Kishore Joshi. No prejudice was pleaded much less established. An illegality committed in the course of an investigation does not affect the competence and jurisdiction of the court for trial and where cognisance of the case has in fact been taken and the case has proceed to termination the invalidity of the preceding investigation does not vitiate the result unless the miscarriage of justice has been caused thereby, see Rishbud and Inder Singh v. State of Delhi. 137. It is well settled that the accused/petitioners are not entitled to say what agency investigates him. The 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 case of CBI v. Rajesh Gandhi reported in (1996) 11 SCC 253, wherein at paragraph-8 it is held as under: 8. There is no merit in the pleas raised by the first respondent either. The decision to investigate or the decision on the agency which should investigate, does not attract principles of natural justice. The ac....
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....rate, Dhanbad. The report, however, was pending and had not been accepted when the Central Government with the consent of the State Government issued the impugned notification. As a result, the CBI has been directed to further investigate the offences registered under the said FIR with the consent of the State Government and in accordance with law. Under Section 173(8) of the CrPC 1973 also, there is an analogous provision for further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate. 138. Admittedly in the present case, the complainants made allegations against the police officer and during the course of the trial, Public Prosecutor was changed/transferred. The allegations made by the complainants against the Investigating Officer and Supervisory Officer of the Investigating Officer and they have been arrayed as Accused Nos. 19 and 20 alleging that they are involved in receipt of illegal gratification. This clearly depicts that the local Police personnel have not conducted the investigation to unearth the real truth in accordance with law and thereby they shielded the real accused and filed the charge sheet against ....
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.... cannot be said that after the charge-sheet is submitted, the court is not empowered, in an appropriate case, to hand over the investigation to an independent agency like CBI. 82. Accordingly, in the facts and circumstances even at this stage the police authorities of the State are directed to hand over the records of the present case to the CBI Authorities within a fortnight from this date and thereafter the CBI Authorities shall take up the investigation and complete the same within six months from the date of taking over the investigation from the State police authorities. The CBI Authorities shall investigate all aspects of the case relating to the killing of Sohrabuddin and his wife Kausarbi including the alleged possibility of a larger conspiracy. The report of the CBI Authorities shall be filed in this Court when this Court will pass further necessary orders in accordance with the said report, if necessary. We expect that the Police Authorities of Gujarat, Andhra Pradesh and Rajasthan shall cooperate with the CBI Authorities in conducting the investigation properly and in an appropriate manner. XIV - Regarding the dictums of the Hon'ble Apex Court under Secti....
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....g of prior permission from the Magistrate for further investigation. Carrying out a further investigation even after filing of the charge-sheet is a statutory right of the police. Reinvestigation without prior permission is prohibited. On the other hand, further investigation is permissible. 17. From a plain reading of sub-section (2) and sub-section (8) of Section 173, it is evident that even after submission of the police report under sub-section (2) on completion of the investigation, the police has a right to "further" investigation under sub-section (8) of Section 173 but not "fresh investigation" or "reinvestigation". The meaning of "further" is additional, more, or supplemental. "Further" investigation, therefore, is the continuation of the earlier investigation and not a fresh investigation or reinvestigation to be started ab initio wiping out the earlier investigation altogether. 18. Sub-section (8) of Section 173 clearly envisages that on completion of further investigation, the investigating agency has to forward to the Magistrate a "further" report and not a fresh report regarding the "further" evidence obtained during such investigation. 19. ....
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....nsidering the provisions of Section 173(8) of the Code of Criminal Procedure held that power of the Police Officer under Section 173(8) is unrestricted and that the Magistrate has no power to interfere, but it would be appropriate on the part of the Investigating Officer to inform the Court. In the said judgment, at paragraph-21 it is held as under: 21. In this context, we may notice the statutory scheme pertaining to investigation. Section 173 CrPC empowers the police officer conducting investigation to file a report on completion of the investigation with the Magistrate empowered to take cognizance of the offence. Section 173(8) CrPC empowers the officer-in-charge to conduct further investigation even after filing of a report under Section 173(2) CrPC if he obtains further evidence, oral or documentary. Thus, the power of the police officer under Section 173(8) CrPC is unrestricted. Needless to say, the Magistrate has no power to interfere but it would be appropriate on the part of the investigating officer to inform the Court. It has been so stated in Rama Chaudhary v. State of Bihar [(2009) 6 SCC 346 : (2009) 2 SCC (Cri) 1059]. 143. In the light of the law laid down....
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....ourt in the present case and the witnesses relevant to such documents are permitted to be examined. 147. All the learned senior counsel for the petitioners heavily relied upon the dictum of 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 1, wherein the 3-Judge Bench of the Hon'ble Supreme Court held that the Police Department has been armed with the power to further investigate an offence even after a police report has been forwarded to the Magistrate and quite obviously, this power continues until the trial can be said to commence in a criminal case. In paragraph-10 of the above judgment, the Hon'ble Supreme Court raised a question of law, which reads as under: 10. The learned counsel for the petitioner, M/s. Nitya Ramakrishnan, did not raise any argument concerning the merits of the case, however raised only the following two arguments, firstly, that the trial court had not given the petitioner a separate hearing while awarding the sentence, in direct contravention of Section 235(2) of the Code of Criminal Procedure (in short "CrPC"), which provides for the right o....
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....ce on the question of sentence. The accused may exercise that right either by instructing his counsel to make oral submissions to the court or he may, on affidavit or otherwise, place in writing before the court whatever he desires to place before it on the question of sentence. The Court may, in appropriate cases, have to adjourn the matter in order to give to the accused sufficient time to produce the necessary data and to make his contentions on the question of sentence. That, perhaps, must inevitably happen where the conviction is recorded for the first time by a higher court. 80. Bhagwati, J. has observed in his judgment that care ought to be taken to ensure that the opportunity of a hearing on the question of sentence is not abused and turned into an instrument for unduly protracting the proceedings." At paragraphs 42 and 43 of the judgment, the Hon'ble Supreme Court while considering the position of law in the context of the said specific question raised, has held as under: 42. The trial court heard the petitioner on the aspect of imposition of sentence separately, which is amply clear from paras 79 to 87 of the judgment of the trial court. Hence, ba....
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....ent, it clearly depicts that though reference was made to Section 173(8) of the Code of Criminal Procedure, the Hon'ble Supreme Court proceeded to consider the powers of the Magistrate after the final report submitted. With due respect, the said case in no way assists the case of the present petitioners/accused persons in the facts and peculiar circumstances of the present case. In the present case, the supplementary charge sheets were filed against additional accused persons and infact the Investigating Officer has been arrayed as Accused No. 19 and Supervisory Officer of Investigating Officer has been arrayed as Accused No. 20, when the interim order dated 21.11.2019 passed in the writ petition No. 51012/2019 has been stayed by the Hon'ble Supreme Court in SLP by the order dated 20.2.2020. In fact in the case of Vinubhai Haribhai Malaviya case stated supra, the Hon'ble Supreme Court though overruled judgments in Amruthbhai Shambhubhai Patel - (2017) 4 SCC 177; Athul Rao - 2018) 14 SCC 298; and Bikash Ranjan Rout - (2019) 5 SCC 542, the dictum of the Hon'ble Supreme Court in the case of Hasanbhai Valibhai Quereshi vs. State of Gujarat reported in (2004) 5 SCC 347 a....
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....igation, the same can certainly be done as prescribed by law. The mere fact that there may be further delay in concluding the trial should not stand in the way of further investigation if that would help the court in arriving at the truth and do real and substantial as well as effective justice. We make it clear that we have not expressed any final opinion on the merits of the case. 150. While considering the powers of the High Court under Articles 226 and 227 of the Constitution of India, the Hon'ble Supreme Court in the case of Ramesh Chandra Sankla vs. Vikram Cement reported in (2008) 14 SCC 58 at paragraphs 19 and 98 has held as under: "19. Order of the Division Bench In view of the above order passed by this Court, intra-court appeals were filed by the Company. The Division Bench of the High Court, as stated above, disposed of the appeals by an order dated 31-10-2006. It was held by the Division Bench that the writ petitions filed by the Company were under Article 227 of the Constitution and the learned Single Judge was exercising supervisory jurisdiction and intra-court appeals were not maintainable and were liable to be dismissed." "98. From....
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....used to him and on the request made by the complainant, the State Government thought it fit to entrust the matter to the CBI to dig out the truth and in terms of the provisions of Section 6 of the DSPE Act the investigation has been completed by the Investigating Officer of the CBI during the pendency of the appeal in SLP filed by the CBI before the Hon'ble Supreme Court from 20th February, 2020 till 11.8.2021 and in the meanwhile, the investigating officer has also filed three supplementary charges and thereby the cognizance of the said offences has been taken. Therefore, the said judgment relied upon by the learned Senior Counsel for accused No. 1 has no application to the facts and circumstances of the present case. 153. Another judgment relied upon by the learned Senior Counsel for accused No. 1 is P. Sambamurthy and Others vs. State of Andhra Pradesh and Another reported in (1987) 1 SCC 362 is with regard to Government having no power to modify or annul the order of the Court since it is violative of basic structure doctrine. We have no quarrel with the law laid down by the Hon'ble Supreme Court in the said case, but in the present case, the Government has not modif....
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....of sufficient material at the instance of the investigating officer, who is now arraigned as accused No. 19. Therefore, the said judgment has no application to the facts and circumstances of the present case. 156. Another judgment relied upon by the learned Senior Counsel for accused No. 5 in the case of Kalabharati Advertising vs. Hemant Vimalnath Narichania & Ors. reported in 2010) 9 SCC 437 at paragraph-21 in respect to administrative law in general, the Hon'ble Supreme Court has held that once the basis of a proceeding is invalid, all consequential acts, action, orders would fall to the ground automatically. The said judgment has no application to the facts and circumstances of the present case, since in pursuance of the impugned order passed by the State Government entrusting the matter to the CBI, the CBI-2nd respondent has filed FIR and after conducting further investigation, has filed supplementary charge sheets before the competent Court and the competent Court after application of mind has taken cognizance of the offences. Admittedly, neither the supplementary charge sheets filed after due investigation by the investigating officer of the CBI nor the cognizance tak....
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....the facts and circumstances of the present case. 159. Another judgment relied upon by the learned Senior Counsel for the accused in the case of Khoday Distilleries Limited (now known as khoday india limited) and Others vs. Sri Mahadeshwara Sahakara Sakkare Karkhane Limited, Kollegal (under liquidation) represented by the Liquidator (2019) 4 SCC 376 particularly paragraphs-22 and 23 with regard to rule of law, the law laid down in the said case is not applicable to the facts and circumstances of the present case. So also the judgments relied by the learned Senior Counsel for accused No. 21 in the case of Union of India vs. K.M. Shankarappa reported in (2001) 1 SCC 582 particularly paragraph-7 as well as State of Tamilandu vs. State of Kerala and Another reported in (2014) 12 SCC 696 have no application to the facts and circumstances of the present case. 160. Though the learned Senior Counsel for accused No. 21 relied upon the dictum of the Hon'ble Supreme Court in the case of Delhi International Airport Ltd. vs. International Lease Finance reported in (2015) 8 SCC 446 with regard to paragraph 23(72) to the effect that the State Government has not followed the mandate of th....
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....annot quash the criminal proceedings as admittedly in the present case, when the trial is half way charge sheets are filed by impleading the new accused persons, cognizance of the offences already taken by the competent Court and now the matter is being posted for further trial. Therefore, this Court cannot quash the impugned order passed by the State Government as well as the FIR culminating into filing of supplementary charge sheets, taking of cognizance by the competent Court and that too when the matter is now being posted for further trial in exercise of powers under the provisions of Articles 226 and 227 of the Constitution of India read with Section 482 Cr.P.C. Our view is fortified by the dictum of the Hon'ble Supreme Court in the case of Rajeev Kourav vs. Baisahab and Others wherein at paragraph-8 it is held as under: "8. It is no more res integra that exercise of power under Section 482 CrPC to quash a criminal proceeding is only when an allegation made in the FIR or the charge-sheet constitutes the ingredients of the offence/offences alleged. Interference by the High Court under Section 482 CrPC is to prevent the abuse of process of any court or otherwise to....
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....he fact that there are very serious triable issues/allegations which are required to be gone into and considered at the time of trial. The High Court has lost sight of crucial aspects which have emerged during the course of the investigation. The High Court has failed to appreciate and consider the fact that the document i.e. a joint notarized affidavit of Mamta Gupta - Accused No. 2 and Munni Devi under which according to Accused No. 2 - Ms. Mamta Gupta, Rs. 25 lakhs was paid and the possession was transferred to her itself is seriously disputed. It is required to be noted that in the registered agreement to sell dated 27.10.2010, the sale consideration is stated to be Rs. 25 lakhs and with no reference to payment of Rs. 25 lakhs to Ms. Munni Devi and no reference to handing over the possession. However, in the joint notarized affidavit of the same date i.e., 27.10.2010 sale consideration is stated to be Rs. 35 lakhs out of which Rs. 25 lakhs is alleged to have been paid and there is a reference to transfer of possession to Accused No. 2. Whether Rs. 25 lakhs has been paid or not the accused have to establish during the trial, because the accused are relying upon the said document....
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....r Section 482 Cr.P.C." 165. On meticulous consideration of all the pleadings, objections and the arguments advanced by the learned Counsel for the parties as well as the material on record, it clearly depicts that the local investigating officers have not conducted the investigation in a fair and proper manner to both victim as well as accused persons, thereby some of the accused persons have been shielded to escape from the clutches of law and the subsequent supplementary charge sheets filed clearly illustrates that the very investigating officers - accused Nos. 19 and 20 have colluded with accused persons by receiving gratification in order to dilute the investigation and there are abundant material on record and overt acts against the said accused persons. Now the matter is being posted for further trial and the accused persons have to face the trial. The petitioners-accused have not made out a case as to how they are prejudiced by facing trial. Ultimately after trial, the truth always prevails and hence, no injustice would be caused to the accused persons in facing the trial. In the circumstances, this is not a fit case where this Court can interfere with the impugned order ....