Nirmala Devi vs State Of Rajasthan And Ors

This petition has been filed assailing the investigation being conducted by the police authorities with regard to allegations against one Additional S.P.,

Sujangarh. An FIR was lodged at Police Station Jyoti Nagar, Jaipur City (South).

Learned counsel for petitioner submits that investigation which has been conducted is contrary to the directions issued by this court dated 3rd January,

2019 and further argues that investigation could have been shifted only by the directions of this court and there was no power available for shifting

investigation from DCP (North) to DCP (West). Learned counsel relies on the judgment of the Supreme Court in the case of Vinay Tyagi Vs. Irshad

Ali alias Deepak & ors., reported in 2013 CRI.L.J.

Per contra, learned Public Prosecutor submits that after investigation having been completed, a final report in the negative form has been

submitted before the competent court.

It is further submitted that the High Court vide order dated 3rd January, 2019 had empowered the Commissioner of Police, Jaipur Metropolitan, Jaipur

to assign the investigation of the impugned FIR to an official not below the rank of the Deputy Commissioner of Police. After the investigation was

conducted by the DCP (North), the Director General of Police after having not satisfied with the investigation, directed the DCP (West) to conduct

investigation under the supervision of Commissioner of Police. Accordingly, under overall supervision of Commissioner of Police, the investigation was

done thoroughly and the police had reached to the conclusion that no case is made out as against the concerned Additional S.P. under Sections 166A,

217 & 120B IPC. Learned Public Prosecutor further submits that the complainant would have all the remedies under the Cr.P.C. with regard to his

objections.

I have considered the submissions.

In the case of Vinay Tyagi (supra), the Apex Court has discussed what is known as ""further investigation"" and has distinguished the same from what

is known as ""fresh investigation"", ""reinvestigation"" or ""de novo investigation"" and has laid down as under:

'Further investigation' is where the Investigating Officer obtains further oral or documentary evidence after the final report has been filed before

the Court in terms of Section 173(8). This power is vested (Downloaded with the Executive. It is the continuation of a on 22/01/2020 at 09:11:06 PM)

previous investigation and, therefore, is understood and described as a 'further investigation'. Scope of such investigation is restricted to the discovery

of further oral and documentary evidence. Its purpose is to bring the true facts before the Court even if they are discovered at a subsequent stage to

the primary investigation. It is commonly described as 'supplementary report'. 'Supplementary report' would be the correct expression as the

subsequent investigation is meant and intended to supplement the primary investigation conducted by the empowered police officer. Another

significant feature of further investigation is that it does not have the effect of wiping out directly or impliedly the initial investigation conducted by the

investigating agency. This is a kind of continuation of the previous investigation.

The basis is discovery of fresh evidence and in continuation of the same offence and chain of events relating to the same occurrence incidental

thereto. In other words, it has to be understood in complete contradistinction to a 'reinvestigation', 'fresh' or 'de novo' investigation.

However, in the case of a 'fresh investigation', 'reinvestigation' or 'de novo investigation' there has to be a definite order of the court. The order of

the Court unambiguously should state as to whether the previous investigation, for reasons to be recorded, is incapable of being acted upon. Neither

the Investigating agency nor the Magistrate has any power to order or conduct 'fresh investigation'. This is primarily for the reason that it would be

opposed to the scheme of the Code. It is essential that even an order of 'fresh'/'de novo' investigation passed by the higher judiciary should always be

coupled with a specific direction as to the fate of the investigation already conducted. The cases where such direction can be issued are few and far

between. This is based upon a fundamental principle of our criminal jurisprudence which is that it is the right of a suspect or an accused to have a just

and fair investigation and trial. This principle flows from the constitutional mandate contained in Articles 21 and 22 of the Constitution of India. Where

the investigation ex facie is unfair, tainted, mala fide and smacks of foul play, the courts would set aside such an investigation and direct fresh or de

novo investigation and, if necessary, even by another independent investigating agency. As already noticed, this is a power of wide plenitude and,

therefore, has to be exercised sparingly. The principle of rarest of rare cases would squarely apply to such cases. Unless the unfairness of the

investigation is such that it pricks the judicial conscience of the Court, the Court should be reluctant to interfere in such matters to the extent of

quashing an investigation and directing a 'fresh investigation'. In the case of Sidhartha Vashisht v. State (NCT of Delhi) [(2010) 6 SCC 1], the Court

stated that it is not only the responsibility of the investigating agency, but also that of the courts to ensure that investigation is fair and does not in any

way hamper the freedom of an individual except in accordance with law. An equally enforceable canon of the criminal law is that high responsibility

lies upon the investigating agency not to conduct an investigation in a tainted or unfair manner. The investigation should not prima facie be indicative of

a biased mind and every effort should be made to bring the guilty to law as nobody stands above law de hors his position and influence in the society.

The maxim contra veritatem lex nunquam aliquid permittit applies to exercise of powers by the courts while granting approval or declining to accept

the report. In the case of Gudalure M.J. Cherian & Ors. v. Union of India & Ors. [(1992) 1 SCC 397], this Court stated the principle that in cases

where charge-sheets have been filed after completion of investigation and request is made belatedly to reopen the investigation, such investigation

being entrusted to a specialized agency would normally be declined by the court of competent jurisdiction but nevertheless in a given situation to do

justice between the parties and to instil confidence in public mind, it may become necessary to pass such orders. Further, in the case of R.S. Sodhi,

Advocate v. State of U.P. [1994 SCC Supp. (1) 142], where allegations were made against a police officer, the Court ordered the investigation to be

transferred to CBI with an intent to maintain credibility of investigation, public confidence and in the interest of justice. Ordinarily, the courts would not

exercise such jurisdiction but the expression 'ordinarily' means normally and it is used where there can be an exception. It means in the large majority

of cases but not invariably. 'Ordinarily' excludes extra- ordinary or special circumstances. In other words, if special circumstances exist, the court may

exercise its jurisdiction to direct 'fresh investigation' and even transfer cases to courts of higher jurisdiction which may pass such directions.

In the light of the above, if this court examines the present case, it is apparent that earlier investigation which was being conducted by the police was

found to have certain shortcomings and a petition under Section 482 Cr.P.C. filed by the petitioner was accepted and the court directed a fresh

investigation and assigned the same to the Commissioner of Police. The investigation was handed over to DCP (North) who has given his opinion of

case being made out whereafter the matter was taken up by the DGP who has found the investigation lacking and again directed the Commissioner of

Police to conduct investigation under his own supervision. The Commissioner of Police, Jaipur Metropolitan, Jaipur has thereafter got investigation

conducted under his own supervision by another DCP (West) who is also an officer of IPS rank. After examining all the aspects, the final report in

negative form has been submitted before the concerned competent court and the investigation is over as of today.

Keeping in view of the above, this court is of the firm opinion that at this stage after investigation has already been completed and the final report in

negative form has already been submitted in the competent court, this court would not interfere in 482 petition and direct a fresh investigation again.

This court is also satisfied that the directions issued by this court dated 3 rd January, 2019 have been fully complied with as the Commissioner of

Police has himself supervised the investigation. However, the petitioner would be always free to raise protest which she wants to make against the

negative final report submitted before the competent court.

Granting the aforesaid liberty, the criminal misc. petition is dismissed.