Rajesh Patel vs State of U.P. and others

Amar Saran and Surendra Singh, JJ.—Heard learned counsel for the petitioner and the learned A.G.A. for the State.

This petition has been filed for quashing the F.I.R. registered on the basis of G.D. No. 26 dated 20.3.2010, Case Crime No. 145 of 2010, under sections 302, 201, 34, 120B I.P.C. and under section 3 (2) V of SC/ST Act, Police Station Chaubepur, district Varanasi and for staying the arrest of the petitioner during investigation.

The background of this case was that an unknown dead body was found in village Sompur Dhav on 20.3.2010, and an information in this regard was given by one Kripa Shankar Singh at P.S. Chaubepur.The post mortem of the unknown dead body was conducted the same day. Subsequently, the corpse was identified to be that of Deepak alias Banti. After disclosures made by an informer and after recording the statements of the witnesses under section 161 Cr.P.C. a charge sheet was submitted in Court against Satish, Raj Kumar, Bhim @ Ajai and Santosh, by the first investigating officer.

Some of the statements of the coaccused and witnesses have been filed in this writ petition. It was stated that two of the witnesses Pappoo Singh @ Arun Singh and Pintoo Singh, whose statements were recorded under section 161 Cr. P. C. by the second investigating officer (C.O.) stated that the petitioner had enmity with Pappoo Singh because of some property dealing dispute, whom he wanted to eliminate, but nothing happened to these persons, and instead the deceased Deepak @ Banti was done to death, regarding which these witnesses have not said anything. It was further submitted that there is inadequate evidence of conspiracy of the petitioner with the other charge sheeted accused. The deceased was himself a bad character with a criminal background, and any of his enemies may have murdered him.

It is beyond the purview of the Court at the stage when it is considering a criminal writ petition to examine the statements of witnesses in the case diary, and to form an opinion on their probative value for reaching an inference on the likelihood of the conviction of an accused on the basis of such statements.

In State of T.N. v. Thirukkural Perumal (1995) 2 SCC 449, it has been observed that it is impermissible to quash criminal proceedings based on evidence collected by the investigating agency during investigation:

"The normal process of the criminal trial cannot be cut short in a rather casual manner. The Court, is not justified in embarking upon an enquiry as to the reliability or genuineness of the allegations made in the FIR or the complaint on the basis of the evidence collected during investigation only while dealing with a petition. . . . . . . . seeking the quashing of the FIR and the criminal proceedings."

Even for the trial Court the statements of witnesses under section 161 Cr.P.C. are not substantive pieces of evidence, and in view of the proviso to subsection 1 of section 162, they can only be used by the trial Court for contradicting a witness when he deposes before the Court in the manner provided under the said proviso.

Moreover, it is not clear whether the said statements, which have been filed in this writ petition are the entire statements of the witnesses as recorded by the previous investigating officer who submitted the charge sheet against the coaccused, as well as the totality of statements recorded by the subsequent investigating officer viz. the C.O. who conducted the subsequent investigation.

We can also not lose sight of the fact that the petitioner is wanted in a grave case inter alia under section 302 IPC. The charge sheet having already been submitted in this case, no question arises of quashing the First information report at this stage, which is the main prayer. When the principal prayer cannot be granted, the ancillary prayer for staying the arrest of an accused can also not be allowed.

In view of section 173(8) Cr.P.C no fetter can be placed on the power of the police to further investigate a case even after submission of the charge sheet. In Dinesh Dalmia v CBI, AIR 2008 SC 78 in paragraph 16 it has been mentioned that the investigating officer is not divested of his power to further investigate a case in exercise of powers under section 173 (8) only because a chargesheet has been filed. Further investigation was permissible even if an order of cognizance of offence has been passed by the Magistrate

The ultimate probative value of the statements of the witnesses or coaccused, are matters for examination by the trial Court at the stage of consideration of the bail or trial. This Court in its writ jurisdiction cannot express an opinion, or adjudicate on the final evidentiary value of the material collected by the investigating agency.

In State of T.N. v. Thirukkural Perumal (1995) 2 SCC 449, it has been held that it is impermissible to quash criminal proceedings based on evidence collected by the investigating agency during investigation:

"The normal process of the criminal trial cannot be cut short in a rather casual manner. The Court, is not justified in embarking upon an enquiry as to the reliability or genuineness of the allegations made in the FIR or the complaint on the basis of the evidence collected during investigation only while dealing with a petition. . . . . . . . seeking the quashing of the FIR and the criminal proceedings."

Moreover at the stage of police investigation, it is open for the police to consider all the material before it, such as confessional statements of coaccused which implicate other accused, or hearsay information given by an informer etc., the police on that basis can proceed to arrest an accused whose name is so revealed, and to interrogate him or to have recoveries made, as it deems fit and proper.

The Courts are debarred from interfering in the investigation by the police in any manner. In State of Haryana & Ors v Ch. Bhajan Lal & Ors, AIR 1992 SC 604 in para 62 it has been observed that the police has unfettered powers to investigate an offence. The field of investigation is exclusively reserved for the police. So long as it does not transgress the provisions of Chapter XII of the Code of Criminal Procedure, Courts cannot interfere with investigation, although as provided in Chapter XIV of Code that the Magistrate has a right to be kept informed at every stage about the progress of the investigation. Likewise in paragraph 19 in Adri Dharan Das v. State of West Bengal, AIR 2005 SC 1057, it has been observed:

"Ordinarily, arrest is a part of the process of investigation intended to secure several purposes. The accused may have to be questioned in detail regarding various facets of motive, preparation, commission and aftermath of the crime and the connection of other persons, if any, in the crime. There may be circumstances in which the accused may provide information leading to discovery of material facts. It may be necessary to curtail his freedom in order to enable the investigation to proceed without hindrance and to protect witnesses and persons connected with the victim of the crime, to prevent his disappearance, to maintain law and order in the locality. For these or other reasons, arrest may become an inevitable part of the process of investigation."

The leading case of Emperor v. Khwaja Nazir Ahmed, AIR 1945 PC 18 has been cited with approval in the Full Bench decision of this Court in Ajeet Singh v. State of U.P., 2007 Cri.L.J 170 which reads as follows:

"........So it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry......... it would be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court. The functions of the judiciary and the police are complimentary not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function,.........the Court''s functions begin when a charge is preferred before it and not until then.......".

It is noteworthy that under section 41 of the Code of Criminal Procedure, a Police Officer may without an order from a Magistrate arrest an accused person without warrant, even if a reasonable suspicion exists of his involvement. Likewise section 157 (1) Cr. P. C., provides that if an officer in charge of a police station has reason to suspect the commission of an offence, he may proceed to investigate the facts and circumstances of the case, and, if necessary arrest the offenders.

In paragraph 19, the Full Bench of the Allahabad High Court in Ajeet Singh v. State of U.P., 2007 Cri.L.J. on a review of various authorities of the Apex Court has summarized the limits for interference in the writ jurisdiction for quashing criminal proceedings, and has emphasized the need to desist from "soft pedalling" the process of investigation as hereunder:

The power of quashing the criminal proceedings has to be exercised very sparingly and with circumspection and that too in the rarest of rare cases and the Court cannot be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of allegations made in the F.I.R. or complaint and the extraordinary and inherent powers of Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice. However, the Court, under its inherent powers, can neither intervene at an uncalled for stage nor it can ''soft pedal the course of justice'' at a crucial stage of investigation/proceedings. (Vide State of West Bengal v. Swapan Kumar Guha, AIR 1982 SC 949; Madhavrao Jiwaji Rao Scindia v. Sambhajirao Chandrojirao Angre, AIR 1988 SC 709; The Janata Dal v. H. S. Chowdhary, AIR 1993 SC 892; Mrs. Rupan Deol Bajaj v. Kanwar Pal Singh Gill, AIR 1996 SC 309; G. Sagar Suri v. State of U.P., AIR 2000 SC 754 : (2000 All LJ 496); and Ajay Mitra v. State of M.P., AIR 2003 SC 1069).

For all these reasons we see no good ground either to quash the F.I.R. or to stay the arrest of the petitioner in this writ petition. It is accordingly dismissed.