Shashi Shekhar Dwivedi vs The State of Bihar

Akhilesh Chandra, J.—Heard learned counsel for the parties. This is an application preferred, by the petitioner a Senior Advocate of this Court, and informant of Jagdishpur P.S. Case No. 174/2009 instituted, on unnatural death of petitioner''s son, who was also a practicing advocate in this court, and one of the aspirants during election on cards for membership of Bihar State Bar Council, seeking following reliefs:--

A. Issuance of an appropriate writ/order/direction commanding the respondents 1 and 4 to make over the case viz. Jagdishpur P.S. Case No. 174/09 dated 9.12.2009 to the Central Bureau of Investigation directing respondent No. 3 to unearth the unvarnished truth upholding the Rule of Law.

B. Issue a direction to quash/delete the interpolated portion from the "fardbeyan" and the F.I.R.

C. Issuance of an appropriate writ/order/direction commanding the respondents to proceed in accordance with law on the basis of the "fardbeyan" of the petitioner excluding the interpolation and subsequent insertion made in the F.I.R. and subject the culprit thereof to the process of the law of the land.

D. Issue appropriate writ/order/direction to initiate suitable proceeding against Respondent No. 7 in whose handwriting the interpolation has been made.

E. To grant such relief(s) the petitioner would be found entitled to.

By a exhaustive order number 5 dated 18.2.2010, apart from others, relief Nos. B and C have already been granted to the petitioner, relevant portion of the order reads as such:--

Learned counsel for the respondents submits that the matter is under enquiry and the action has already been initiated against respondent No. 7, who was the then S.H.O. of the concerned Police Station and later on, he became Investigating Officer of the case from 29.1.2010. Although the enquiry is pending but since this statement on the affidavit has been made by a senior member of the Bar and a responsible Officer of this Court, this Court is inclined to accept the same.

Therefore, this Court directs that last line of first paragraph of the fardbeyan, as quoted above, shall not be treated as part of the fardbeyan and shall not form part of the first information report also. The investigation of case will now proceed without that line and only on the basis of rest of statement in the fardbeyan, in accordance with law.

And as regard to relief-A, some direction and observation were also made in said order wherein it is also mentioned as regard to relief-D that the authorities have already proceeded against respondent No. 7 and it was further observed:--

It is expected that the said proceeding against respondent No. 7 will be held expeditiously and final result of the said proceeding shall also be intimated to this Court by the next date.

Subsequently by filing a interlocutory application No. 571/2010 it was intimated that respondent No. 7 is still continuing at same police station and interfering in investigation direction was sought apart from others to initiate a suitable proceeding against him. Taking into consideration the submissions and materials available said interlocutory application was also disposed of vide order No. 7 dated 5.4.2010 and the then D.I.G., authorized for overall supervision, was expected to do all the needfuls consequently no other direction was required or given.

By filing another interlocutory application No. 2048/2010, further direction was sought to entrust supervision and control of investigation another senior police official since the then D.I.G. had been transferred and vide order dated 12.10.2010 said Interlocutory Application was disposed of with observation. Relevant portion stated below:--

The informant stated in the First Information Report that on 9.11.2009 at 9.00 A.M., he got telephonic information that his son, Ravi Shankar Dwivedi, met with car accident in area falling within Jagdishpur Police Station in the District of Bhojpur. His son had informed him, the previous night that he would be leaving for Gaya with two to four people on 9.11.2009 at 5.00 A.M. The informant, who reached the place of accident found his son dead in mysterious circumstances. No money was found in the car, though he was carrying enough money. The dickey (Boot) of the car was closed. The informant stated that his son was going to Gaya for his campaign, as he was a candidate in the forthcoming Bar Council Election. He states that strangely enough, in the First Information Report one line was subsequently added towards end stating that the occurrence took place on account of carelessness in driving.

After taking into consideration, the facts and circumstances of the case, as well as the fact that the informant is a Senior Counsel of this Court, this Court by order dated 18.2.2010 directed that aforesaid line namely (YEH GHATNA TEJI WO LAPARWAHI SE GARI CHALANE KE KARAN GHATIT HUI HAI) would not form part of the First Information Report. This court finding that C.B.I. is over worked with investigation of a large number of cases, directed the Director General of Police, Bihar, Patna to hand over all supervision and Investigation either to Ms. Anupama Nilekar or Mr. Arvind Pandey, both in the rank of D.I.G.

Supplementary counter affidavit has been filed by State and supplementary affidavit has also been filed by the petitioner admitting the fact that investigation is over, final form has already been submitted, and the same is still pending consideration by the court below.

It is contended that whatever introduced by interpolation in the fardbeyan making death of petitioner''s son in a accident of car due to his own negligence and reckless driving is ultimate outcome of the investigation which is contrary to the actual state of affairs. No proper investigation has been done to ascertain truth and actual happenings.

Attention of this court was also drawn towards contents of the fardbeyan (Annexure-1):--

Fardbeyan of Sri Shashi Sekhar Dwivedi aged about 69 years, S/o. late Sheo Kumar Dwivedi of village 18 Sardar Patel Path, North S.K. Puri, Patna, P.S. Krishnapuri District-Patna, recorded by S.I. Narendra Kumar of Jagdishpur Dist. Bhojpur on 9.11.09 dt. 12.30 hrs. at NH-30 near Daya Ram Pokhra.

(controversial portion underlined by me has already been deleted vide earlier order dated 18.2.2010)

Learned counsel representing the petitioner by placing reliance upon decision of Apex Court in State of West Bengal and Others Vs. The Committee for Protection of Democratic Rights, West Bengal and Others, ; Rubabbuddin Sheikh Vs. State of Gujarat and Others, and State of Punjab Vs. Central Bureau of Investigation and Others, ; that reinvestigation of the case by competent agency like C.B.I. is highly essential and required to unearth the truth and the causes behind unnatural death of petitioner''s son who had to in fact moved towards Gaya in Election campaign alongwith his lawyer friend, but was found dead in unnatural circumstances in a opposite direction at a substantial distance at Jagdishpur in the District of Bhojpur. Nature of injury, condition of vehicle etc. indicates a different story but investigation appears narrowed and confined towards accidental death due to own negligence of the deceased.

On careful consideration of the decisions relied upon it appears that law is very much clear on the issue that though there is no inflexible guidelines but the High Court should exercise its extraordinary powers sparingly, cautiously in rare cases only for substantive reasons, if there appears strong circumstance indicating no other way available to arrive at any definite conclusion. Investigation may even be ordered by C.B.I. but not as a matter of routine merely because a party has leveled some allegations against the local police. In the instant case, relating to unnatural, but apparently accidental death of petitioner''s son, allegation was leveled only against local police officer of a lower rank for his alleged insertion of a few words in the fardbeyan of informant that too has already been deleted by earlier order of this court, it is not a case wherein high police officials are in any way involved in the commission of the crime etc. as it was before the Apex Court in the cases of State of West Bengal or Rubabbuddin Sheikh or State of Punjab (supra).

On behalf of the respondents earlier decision of Apex Court in a case Sakiri Vasu Vs. State of U.P. and Others, has been placed whereon learned counsel for the petitioner also relied and it is contended on behalf of the respondent that if at all investigation is faulty the court below is competent enough to examine and direct re-investigation by the agencies competent to do so, of course, Magistrate cannot entrust investigation upon C.B.I. The Apex Court in paras. 13-17 and 27 has held:--

The same view was taken by this Court in Dilawar Singh vs. State of Delhi (JT vide para. 17). We would further clarify that even if an FIR has been registered and even if the police has made the investigation, or is actually making the investigation, which the aggrieved person feels is not proper, such a person can approach the Magistrate u/s 156(3) CrPC, and if the Magistrate is satisfied he can order a proper investigation and take other suitable steps and pass such order(s) as he thinks necessary for ensuring a proper investigation. All these powers a Magistrate enjoys u/s 156(3) CrPC.

Section 156(3) states:--

156(3). Any Magistrate empowered u/s 190 may order such an investigation as abovementioned.

The words "as abovementioned" obviously refer to Section 156(1), which contemplates investigation by the officer-in-charge of the police station.

Section 156(3) provides for a check by the Magistrate on the police performing its duties under Chapter-XII CrPC. In cases where the Magistrate finds that the police has not done its duty of investigation the case at all, or has not done it satisfactorily, he can issue a direction to the police to do the investigation properly, and can monitor the same.

The power in the Magistrate to order further investigation u/s 156(3) is an independent power and does not affect the power of the investigation officer to further investigate the case even after submission of his report vide Section 173(8). Hence the Magistrate can order reopening of the investigation even after the police submits the final report, vide State of Bihar and Another Vs. J.A.C. Saldanha and Others, .

In our opinion Section 156(3) CrPC is wide enough to include all such powers in a Magistrate which are necessary for ensuring a proper investigation, and it includes the power to order registration of an FIR and of ordering a proper investigation if the Magistrate is satisfied that a proper investigation has not been done, or is not being done by the police. Section 156(3) CrPC, though briefly worded, in our opinion, is very wide and it will include all such incidental powers as are necessary for ensuring a proper investigation.

And in para. 27 it is held:--

As we have already observed above, the Magistrate has very wide powers to direct registration of an FIR and to ensure a proper investigation and for this purpose he can monitor the investigation to ensure that the investigation is done properly (though he cannot investigate himself). The High Court should discourage the practice of filing a writ petition or petition u/s 482 CrPC simply because a person has a grievance that his FIR has not been registered by the police, or after being registered, proper investigation has not been done by the police. For this grievance, the remedy lies under Sections 36 and 154(3) before the police officers concerned, and if that is of no avail, u/s 156(3) CrPC before the Magistrate or by filing a criminal complaint u/s 200 CrPC and not by filing a writ petition or a petition u/s 482 CrPC.

On consideration of the materials and rival contentions, it is crystal clear that investigation, in the instant case, has already been over and the outcome by way of final form is pending consideration before Chief Judicial Magistrate, Bhojpur at Ara, and as stated above, right from the initial stage this court has opted not to invoke its extra-ordinary jurisdiction and direct the investigation of the case to C.B.I., and I also find no reason to change the stand already taken.

Now, it is open for the petitioner, if aggrieved by the investigation, to avail his remedy under law as indicated by the Apex Court in the case of Sakiri Vasu (supra) by making a request to the court below by filing a detailed application, specifically pointing out its grievances, if any, against the outcome of investigation consuming quarter past three years and detailed contained in 573 paragraphs of the case diary, and in the event of filing such application either suo motu or on receipt of notice, if required, issued the court below shall on due consideration of the materials and objections raised pass appropriate order in accordance with law also taking into consideration the guidelines as indicated by the Apex Court in the case of Sakiri Vasu (supra) at the earliest. With the above observations, this writ application is hereby disposed of. Registry is directed to at once send down the case diary to the court below alongwith copy of this order.