Rajan Tiwary vs Union of India (UOI)

P.K. Sinha, J.—This application is u/s 482 of the Code of Criminal Procedure (hereinafter referred to as ''the Code'') for quashing the charge sheet submitted by the Central Bureau of Investigation (C.B.I., in short) in R. C. No. 12 (S) of 1998 dated 10.5.1999 for various offences including u/s 302 of the Indian Penal Code and u/s 27 of the Arms Act against the Petitioner, Rajan Tiwary, as also against others.

Since both the sides are present, this petition is being disposed of at the admission stage itself.

Facts, in short, are that on the first information report lodged by Kalyan Chandra Sarkar about murder of Ajit Sarkar, the police took up investigation on 14.6.1998. As noted in paragraph 15 of the petition the investigation was entrusted to the C.B.I, but before C.B.I, took over investigation of the case, the Police had filed charge sheet No. 210 of 1998 dated 19.9.1998 against Jawahar Yadav and four others (not the Petitioner). The grievance of the Petitioner is that the C.B.I., after investigation, submitted charge sheet against a set of persons including the Petitioner but it did not find those persons involved in the alleged crime who were named as accused in the charge sheet submitted by the Police. The only point, that has been urged before me by the learned Counsel for the Petitioner, is that though under the provision of Section 173(8) of the Code, further investigation is permitted but that does not mean a fresh investigation which, however, appears to have been done by the C.B.I. as in its investigation it has propounded a new theory about the murder which is not at all in conformity with the findings of the statutory police by whom a separate charge sheet was submitted, and cognizance of the offence was also taken by the Chief Judicial Magistrate, Purnea.

In that regard learned Counsel has relied upon a decision of the Apex Court in the case of K. Chandrasekhar Vs. The State of Kerala and Others, In that case Director General of Police, Kerala had recommended the Government to entrust the investigation in quetion to the C.B.I, and the Government of Kerala, accepting that recommendation, issued notification u/s 6 of Delhi Special Police Establishment Act, 1946 (''1946 Act'', in short) according consent and authorising the members of Delhi Special Police Establishment for investigation in the two cases mentioned therein. The C.B.I, in that case had taken up investigation. In one of the cases the C.B.I, submitted final form u/s 173(2) of Code, recommending for discharge of all the accused persons as the allegations of espionage were not proved, rather were found to be false. That report was accepted by the court. Thereafter, on 27.6.1996 Government of Kerala issued notification withdrawing the consent earlier given to the C.B.I., dated 2.12.1994. The consent was so withdrawn as to enable a team of State Police Officers to further investigate into the case in which the C.B.I, had filed final form, against which the aggrieved persons moved the High Court of Kerala which court found the impugned notification to be valid. Their Lordships of the Supreme Court held that after submission of police report under Sub-section (2) of Section 173 of the Code on completion of investigation, the Police had a right of "further" investigation; under Sub-section (8) but not "fresh inves tigation" or "re-investigation". It was also held that if any further investigation was to be made, it was C.B.I. alone which could have done so, for it was entrusted to investigate into the case by the State Government. Their Lordships held the notification of the State Government withdrawing the consent to be invalid and unsustainable in law.

Learned Counsel for C.B.I., Sri Rakesh Kumar, has argued that the State Government, had given consent authorizing the C.B.I, to take over the investigation of the case while the State Police was still Investigating the case and, as a matter of factl charge sheet dated 19.9.1998 was submitted by the State Police after the C.B.I. had takep up the investigation. winexure-2 to the petition was pointed out, which is a copy of the charge sheet filed in this case by the C.B.I, which make it clear that the Government of India vide its Notification No. 228/39/98/A.V.D.-ll/New Delhi dated 28.8.1998 had entrusted the investigation of the case to the C.B.I., with the consent of Government of Bihar. Hence it is manifest that the State Government had authorised the C.B.I, by giving consent u/s 6 of the 1946 Act to investigate into the case while charge-sheet by the Police had not been filed. In course of arguments this position was not denied by the learned Counsel for the Petitioner.

Question, of further investigation into a case under Sub-section (8) of Section 173 of the Code arises only after the Investigating Agency has submitted final form under Sub-section (2) of Section 173 of the Code. There is no question of further investigation into a case before the charge sheet has been submitted, that is, while the investigation is still continuing. Statutory Police, no doubt, has a right to investigate a case and after investigation to file final form but the State Police works under superintendence of the State Government within the meaning of Section 3 of the Indian Police Act, 1961 (sic-1861 ?) by which the State of Bihar is governed. This power of superintendence over the State Police vests completely in the State Government, to decide as to which agency would be better suited to make an invisti-gation into a particular case. The State Government is also empowered to authorise C.B.I. to take up investigation of a particular case u/s 6 of 1946 Act and when the C.B.I, is so authorised it will have the powers for investigation as enumerated in other provisions of the 1946 Act. Therefore, the State Government had the power to take away the investigation from the state police and to entrust it to C.B.I. Since this was done before the State Police had submitted charge sheet, it was not a case of "further investigation" into a case, hence the C.B.I, was authorised to investigate into the case in the manner as it deemed fit, and to reach at its own conclusions. In view of this, the argument advanced on behalf of the Petitioner has no merit. The grant of consent by the State Government would tantamount to taking over the investigation from the State Police and to transfer it to the C.B.I.

Besides this, learned Counsel for C.B.I, has pointed out that, as also mentioned in the charge sheet, the C.B.I, had found sufficient evidence against the Petitioner to file charge sheet, including his judicial confession about his involvement in the crime and his having been identified by the informant and other witnesses at the test identification parades. It was also pointed out that this case now is at trial stage before the Special Judge Patna.

In view of the discussion aforesaid, and finding no merit in the contentions advanced on behalf of the Petitioner, this petition is dismissed.