2022 (7) TMI 1457

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....and she had died on the same day. Respondent No. 1 had lodged a complaint with the police on 17.02.2021 on the basis of which FIR No. 15/21 at Alipore Police Station for the offences under Sections 306, 498A, 34 of the IPC was registered. Respondent No. 1 on or about 7th of October, 2021 had filed W.P.A. No. 17293 of 2021 raising grievance against the unsatisfactory investigation and making a prayer for constituting the Special Investigation Team to investigate the offences in Alipore Police Station Case No. 15 of 2021. By the order under challenge, learned Single Judge has allowed the prayer. 3. Submission of the learned Counsel for the appellant is that the writ petition filed by the respondent No. 1 was not maintainable because he had filed an application under Section 156(3) of the Cr.P.C. and without disclosing this fact, simultaneously, he had invoked the writ jurisdiction. He further submits that even otherwise in respect of the grievance relating to improper investigation the writ petition was not maintainable and the appropriate remedy was to approach the Judicial Magistrate and in support of his submission he has placed reliance upon the judgment of the Hon'ble Supre....

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....tting that a limited direction of constituting the SIT for investigation has been issued by the learned Single Judge and the appellant accused has no right to choose investigating agency and that no appeal has been preferred by the State. He has further submitted that entire arguments are focused on the appellant but there are 2 more accused in the FIR against whom no action has been taken and police is hand in glove with the accused. He has further submitted that the warrant of arrest was issued only against the appellant, not against other 2 accused persons and even against the appellant no action has been taken. He further submits that application filed before the Judicial Magistrate was for monitoring the investigation and it was not an application under Section 156(3) of the Cr.P.C. and that even otherwise the Judicial Magistrate has no power to form SIT. He also submits that about 11 months after making seizure of the iPhone on 10.02.2022 notice was issued by the police to respondent No. 1 to provide the password which shows the inaction on the part of the police and the password was immediately provided on 22.02.2022. He also submits that the Advocates for the appellant had ....

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....igation was not completed and charge sheet was not filed. 8. The allegation that the investigation was delayed due to the respondent No. 1 is not substantiated as the only document which is brought to the notice of this Court is the communication dated 10.02.2022 sent after more than a year of registration of the offence, to the respondent No. 1 requiring him to furnish certain information including the passwords of the iPhone which was seized. The passwords in the separate sealed envelope were provided by the respondent No. 1 vide communication dated 23.02.2022, therefore on this basis we cannot hold that the respondent No. 1 had delayed the investigation. 9. Learned Single Judge in the order under appeal has taken note of the social position of the parties and issue of delay. It has been found that the investigation has been rather slow and directionless. The respondent No. 6 in the writ petition i.e. the investigating officer has been found to be lacking in experience and also having lack of adequate support and machinery. In the said background, learned Single Judge, considering the gravity of offences and the delay, had opined that the Special Investigation Team consisting o....

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.... the accused has no right to be heard at the stage of investigation. By entrusting the investigation to CBI which, as aforesaid, was imperative in the peculiar facts of the present case, the fact that the petitioner was not impleaded as a party in the writ petition or for that matter, was not heard, in our opinion, will be of no avail. That per se cannot be the basis to label the impugned judgment as a nullity." 12. In the matter of Arnab Ranjan Goswami (supra) in paragraph 52, the Hon'ble Supreme Court has taken the view that the displeasure of an accused person about the manner in which the investigation proceeds or an unsubstantiated allegation of a conflict of interest against the police conducting the investigation must not delay the legitimate course of law and warrant the invocation of the extraordinary power of the Court to transfer the investigation to CBI. 13. Hence, in view of the aforesaid judicial pronouncement, it is not open to the appellant to raise a complaint against the direction of the learned Single Judge to constitute the SIT specially when no prejudice is shown to have been caused to the appellant on account of such a direction. 14. The investigation i....