Badri Narain Tewari vs State of U.P.

Virendra Saran, J.—Badrl Narain Tiwari is in jail in connection with Crime No. 68 of 1992, u/s 147, 148, 149, 302, 506. 120-B IPC of P.S. Mahob Kanth, District Hamirpur.

Heard learned Counsel for the Applicant, learned Counsel for the informant and the learned State counsel at length.

The question of ball apart, a perusal of the case diary and other materials placed on the record raise many question marks in my mind regarding fairness of the Investigation in this case by the local police of Hamirpur. Ravindra Kumar Tiwari, unfortunate brother of deceased Brijendra Tiwari made specific allegations in the First Information Report that the deceased had earned the wrath of Sri Surendra Singh Yadav, Station Officer, P. Section Mahob Kanth for the reason that the former had complained to the higher authorities that Sri Yadav was in league with criminals operating In the area and that Sri Yadav had extended threats of murder to the deceased The report goes on to state that the Station Officer had conspired with the Applicant and the other co-accused of this case and got the murder committed. These allegations, true or false required a thorough investigation.

By the order of the Superintendent of Police. Hamirpur the investigation of this case was entrusted to Sri B.P. Shukla. S.H.O. Mahoba. Sri Shukla was on a razor''s edge. On one hand he had the responsibility of the unpleasant task of Investigating a charge of conspiracy to murder against his own colleague who if not a favorite, was in good books of the High ups in the police administration as he according to the information given to the Court by either side, now holds the prized post of Inspector Kotwali, (sic) On the other hand Sri Shukla was being accused by the complainant''s side of being partisan towards his colleague, Sri Yadav.

I have perused the case diary carefully and find that much that was required to be investigated in a case of this nature remains to be done. No effort appears to have been made to collect evidence, one way or the other, regarding allegations that Sri Yadav was in league with the criminals of the area and his connections, if any, with the accused of the present case, investigation on these points is only skin deep. When there were allegations against the Station Officer himself in all fairness the investigation ought to have been entrusted to some superior officer. The case diary shows that at one stage the Superintendent of Police, Hamirpur had entrusted investigation to Sri Hira Lal, Circle Officer, Mahoba but it was re-entrusted to Sri Shukla after some time. In the circumstances it was felt necessary to call for a counter affidavit from the State. Sri Vikram Singh. Deputy Superintendent of Police, Hamirpur has filed counter-affidavit in which he states that Sri Shukla was entrusted with the investigation of the case on 4-5-1992. Hardly a couple of days had passed when he proceeded on leave and hence on 7-5-92 the Superintendent of Police, Hamirpur entrusted the investigation to Sri Hira Lal, Circle Officer. The counter-affidavit goes on to state that since Sri Shukla had reported back, the Superintendent of Police, Hamirpur on 12-5-92 again entrusted investigation of this case to Sri Shukla. Annexure C.A.-2 filed with the counter-affidavit is the order dated 5-5-1992 by which Sri Hira Lal was entrusted with the investigation of this case. There is no mention in Annexure C.A.-2 that the investigation has been transferred to the Circle Officer because Sri Shukla was proceeding on leave. Curiously enough the order, by which the investigation was taken from the hands of Sri Hira Lal, Circle Officer and re-entrusted to Sri B.P. Shukla, has not been annexed with the counter-affidavit. The reason for this change is also not disclosed in the case diary anywhere. The explanation given in the counter-affidavit of Sri Vikram Singh appears to be far from reality. I may also mention here that the trend of the counter-affidavit of Sri Vikram Singh is to put up a well determined opposition to the case of the complainant.

Sri B.P. Shukla also appeared in the court and he stated that there is a mention in the case diary that there was a talk in the village that the real murderer was Peer Box. Sri B.P. Shukla was asked if he had interrogated a single person of the village regarding this talk but he answered in the negative. If there was any such talk going on in the village it became the duty of the investigator to interrogate the villagers even if they were not prepared to come out and give evidence in court. It was immaterial whether they admitted or denied such talk.

Along with the counter-affidavit, filed by the complainant, an application dated 6-2-92, allegedly given by the deceased Brijendra Tiwari, has been annexed, in which several allegations were made against one Sant Ram Tiwari and it was mentioned that there was a chain of burglaries in and around Village Teiya. It was further stated in the said application that the Applicant held a gun licence with a fake address of Jhansi. Another application was annexed with the said counter-affidavit, making complaint against the Station Officer, Mahob Kanth and further stating that on the support of the Station Officer, the Applicant was able to construct a house overnight on the land of Gram Samaj. In the counter-affidavit, filed by Sri Vikram Singh, it is stated that these applications dated 6-2-92 and 30-3-92 could not be traced out by him. Following words in the counter-affidavit of Sri Vikram Singh are material:

The dependent is of the opinion that the averments made by complainant in this regard are absolutely baseless and false and made with some oblique motive.

The tenor of the counter-affidavit unfurls bias of the police towards the complainant. With the supplementary counter-affidavit, filed by the complainant, photo copies of certain news papers of the local dailies, viz., ''Karmyug Prakash'' published from Orai and ''Dainik Jagram'' published from Jhansi and ''Aaj'' published from Kanpur have been annexed in which news items appeared regarding thefts and voice was raised for the transfer of the Station Officer. Thus the counter-affidavit, filed by Sri Vikram Singh, Deputy Superintendent of Police, Hamirpur does not depict the correct picture and the allegations made in the complaints dated 6-2-92 and 30-3-92 which have been annexed with the counter-affidavit of the complaint are more than mere gossip. It would, therefore, be in the Interest of justice that the investigation should be made by some independent agency.

I have also heard learned Counsel on either side on the desirability of directing an investigation by the C.I.D. In my opinion such an order can be passed by the High Court in its in build inherent jurisdiction u/s 482 Code of Criminal Procedure as also in the exercise of Its jurisdiction under Article 226 of the Constitution of India suo moto.

The question of exercise of jurisdiction under Article 226 of the Constitution was considered in the case of S. Barrow Vs. State of U.P. and Another, . A Division Bench of this Court observed that such a power can be exercised suo moto In a very recent case of Badruddin and Party v. State 1992 UP LB EC 639, another Division Bench of this Court while considering a petition under Article 226 of the Constitution, exercised its powers under Article 227 of the Constitution suo moto The Supreme Court in the case of M.V. Elisabeth v. Harwan Investment JT 1992 (2) 65, has held that the High Court being a superior court of record is a court of unlimited jurisdiction and has also the jurisdiction to determine its own powers. In M.V. Elisabeth''s case (supra) the Supreme Court negatived the contention that the High Court in the exercise of its Admiralty jurisdiction cannot attach a foreign ship, when it appeared in Indian waters, in the absence of a specific power to that effect conferred by an enactment in para 68 of its judgment the Supreme Court observed:

The High Courts in India are superior courts of record. They have original and appellate jurisdiction. They have inherent and plenary powers. Unless expressly or Impliedly barred and subject to the appellate or discretionary jurisdiction of this Court, the High Courts have unlimited jurisdiction, including the jurisdiction to determine their own powers.

In para 72 of its judgment the Supreme Court reiterated the following observations made in its earlier decision in the case of Delhi Judicial Service Association, Tis Hazari Court, Delhi Vs. State of Gujarat and others,

...The Constitution has assigned a new role to the Constitutional Courts to ensure rule of law in the country...Time has come to have a fresh look at the old precedents and to lay down law with the changed perceptions keeping in view the provisions of the Constitution....

Co-existence of this Court''s jurisdiction under Article 226 of the Constitution and u/s 482 of the Code is well recognised. In the case of State of Haryana and others Vs. Ch. Bhajan Lal and others, the Supreme Court observed that the extra ordinary powers under Article 226 of inherent powers u/s 482 of the Code can be exercised in given circumstances. This case has been followed in a very recent case of Janta Dal v. H.S. Chaudhary JT 1992 (5) 214 (Para 136). In the case of Zulfiqar Beg alias Babey 1990 ACC 687 Hon''ble Girdhar Malviya. J. directed C.I.D. investigation in the exercise of this Court''s jurisdiction u/s 482 of the Code: There are a number of decisions where the courts have directed C.B.I. investigation in appropriate cases. Reference may be made to the case of Gudalalure v. Union of India 1992 (1) Crime-2 SC, in which the Supreme Court directed the investigation to be made by the C.B.I.

Adverting to the merits of the bail application, the case of the Applicant for bail will have to be considered regardless of the fact that the police is hostile to the complainant. The present is a case of night shooting. I have gone through the case diary and other materials on the record and I am of the opinion that a case for bail is made out I would not like to express any further opinion on merits least it may prejudice the trial one way or the other.

In the result, the Applicant shall be released on bail on his furnishing a personal bond, of Rs. Ten Thousand and two sureties, each in the like amount to the satisfaction of Chief Judicial Magistrate, Hamirpur on the condition that he will report in the court of Chief Judicial Magistrate, Hamirpur every fortnight. While releasing the Applicant the learned Chief Judicial Magistrate shall fix a date for the next appearance of the Applicant and on each subsequent date a fresh for appearance shall be given.

It is further directed that the State Government shall entrust investigation of the present case (Crime No. 68 of 1992, u/s 147, 148, 149, 302. 120-B and 506 IPC, P. Section Mahob Kanth, District Hamirpur) to the C.I.D. In case a charge sheet has already been submitted in the court the learned Magistrate concerned shall permit the C.I.D. to further investigate the case. The C.I.D. shall submit its report within four months to the court concerned. The CI D. shall be free to investigate and this judgment shall not be interpreted to mean that there is any direction to file a charge sheet or final report against any one.

The case diary has already been returned to the learned Public Prosecutor.

A copy of the judgment shall be sent to the Home Secretary, Government of U.P. for necessary action and another copy to the Superintendent of Police, Hamirpur,