Arif Anwar Hashmi vs State of U.P. and Others

A. Mateen and Shiv Charan Sharma, JJ.—Heard Sri Virendra Bhatia, learned Senior Advocate appearing for the petitioner, learned Additional Government Advocate and Sri Kunwar Mridul Rakesh, learned Senior Advocate appearing on behalf of opposite parties 5 & 6.

Under challenge is order dated 21.03.2008 passed by Sri Naveen Chandra Tripathi, Deputy Secretary, Government of U. P., Lucknow by means of which it is directed that matter pertaining to Case Crime No. 164 of 2006, under Sections 147, 148, 149, 307, 504 & 506 IPC read with Section 7 Criminal Law Amendment Act, police station Sadulla Nagar, district Balrampur be further investigated by CB, CID.

It comes out from the pleadings as well as arguments of the learned Counsel for the parties that order dated 21.03.2008 is an offshoot of the aforesaid FIR in which, as submitted by Sri Kunwar Mridul Rakesh charge sheet has already been filed as far back as on 20th August 2007. The court concerned has also taken cognizance. It further comes out that order after order is being passed by the State Government sometime directing the CB, CID to further investigate the matter under the garb and powers vested in them u/s 173(8) Criminal Procedure Code and sometime withdrawing the order

No doubt, u/s 173(8) Criminal Procedure Code, the State Government is fully empowered to get the matter investigated by any agency, but it has to be seen that the matter is investigated in its true spirit, without undue favour to any of the authorities. It further comes out from the impugned order (Annexure-1 to the writ petition) that in the aforesaid crime number charge sheet has already been submitted; cognizance has already been taken; and the case is pending before the court concerned.

Now during pendency of the case arising out of Crime No. 164 of 2006, referred to above, the impugned order dated 21st March 2008 has been passed by the State Government under the garb and powers u/s 173(8) Criminal Procedure Code for getting the matter further investigated by the CB, CID for which as per Sections of the Criminal Procedure Code and under the law laid down by the various Courts, including the Apex Court, the State Government is fully empowered to see that the matter is investigated by any agency without any favour in its true spirit, honestly and sincerely. The Apex Court in paragraph-5 of its latest judgment delivered in the case of State of Andhra Pradesh v. A.S. Peter reported in AIR 2008 SCW 637 has held that "Indisputably, the law does not mandate taking of prior permission from the Magistrate for further investigation. Carrying out of a further investigation even after filing of the charge sheet is a statutory right of the police. A distinction also exists between further investigation and re-investigation. Whereas re-investigation without prior permission is necessarily forbidden, further investigation is not."

The Apex Court has in the above cited case observed that carrying out of a further investigation even after filing of the charge sheet is a statutory right of the police and the State Government is fully empowered u/s 173(8) Criminal Procedure Code to get the matter investigated by any agency, but it should be fair, sincere and honest investigation.

Accordingly, we find that impugned order dated 21.03.2008 (Annexure-1 to the writ petition), from which it comes out that the matter shall be further investigated by CB, CID, neither suffers from any illegality nor is against the provisions of the Criminal Procedure Code or the law laid down by the Apex Court and it cannot be set aside. However, it would not be out of place to indicate that since charge sheet has already been filed in the aforesaid crime number as far back as on 20th August 2007 and the court has taken cognizance, as such, the court shall proceed with the matter and shall not stay the proceedings under the impression that the investigation by the CB, CID is still going on. The matter with respect to investigation in pursuance of the impugned order by CB, CID shall go on and the CB, CID shall submit report in the court concerned of whatever result of investigation comes out at an early date.

The writ petition is misconceived and is accordingly dismissed.