In the High Court of Jharkhand at Ranchi
W.P.(Cr.) No.304 of 2008
Hitesh Verma................................ Petitioner
VERSUS
State of Jharkhand through
Secretary (Home) andothers..........Respondents
CORAM: HON'BLE MR. JUSTICE R.R.PRASAD
For the Petitioner: M/s. Jai Prakash and Pandey Neeraj Rai
For the State : Mr.R.R.Mishra, G.P.II
For the Informant: Mr. Prabhash Kumar
Reserved on 28.5.2009 Pronounced on 10.7.2009
15. 10.7.09
. This writ application has been filed for quashing the order
dated 16.9.2008 passed by Additional Judicial Commissioner-cum-
FTC No.VII, Ranchi in Sessions Trial No.237 of 2005 whereby
Additional Judicial Commissioner declined to call for a report of the
Investigating Agency which, according to the petitioner, does
contain vital evidences including the records relating to treatment
of the deceased and consequently to direct learned court to ensure
production of the said report for its consideration at the time of
hearing on the point of discharge/framing of charge.
Before adverting to the submissions advanced on behalf of
the parties, the facts giving rise this application need to be stated
in brief.
When Sanjana Verma, wife of the petitioner was found
dead, it was suspected by the informant to be a case of homicide
and hence, lodged a case on the allegation that just after the
marriage, the husband (petitioner), father-in-law as well as
mother-in-law of the deceased had started putting forth demand
of a car and money and in order to get the demand fulfilled, she
was being subjected to cruelty and ultimately, she was done to
death. Accordingly, Doranda (Argora) P.S. case no.329 of 2004
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was instituted under sections 302 and 498A/34 of the Indian Penal
Code. The police having investigated the case, submitted charge
sheet under section 498A and 304A of the Indian Penal Code
against the petitioner (husband of the deceased), while the
investigation against the father-in-law and mother-in-law of the
deceased was kept open. However, the police subsequently did
not find complicity of those persons and hence, submitted final
form. Thereafter the petitioner made a representation before the
Additional Director General of Police, CID, Jharkhand for taking up
the matter for fresh investigation as the investigation made by the
district police is not only tainted with bias but is faulty also as so
many materials showing innocence of the petitioner have not been
brought forth resulting into injustice to the petitioner. Having
satisfied, Additional Director General of Police, CID ordered for
enquiry into the matter. On taking the matter for enquiry, the
enquiring officer, according to the petitioner, did find that the
deceased had been admitted in Central Coalfields Limited, Central
Hospital, Gandhinagar, Ranchi for acute bronchial asthma and non-
sensitive pneumonia which fact was revealed from the Bed Head
Ticket of the Central Coalfields Limited, Central Hospital,
Gandhinagar, Ranchi as well as Apollo Hospital, Ranchi but those
materials never form part of the case diary. The enquiring officer
on collecting the aforesaid materials and other evidences did find
the investigation made by the police to be biased and faulty. On
submission of the report, Additional Director General of Police,
CID, directed the Inspector of Police, CID to seek permission of the
court for reinvestigation. However, when the prayer was made on
behalf of the CID to allow him to take further investigation in the
matter, the prayer was refused by Additional Judicial
Commissioner-cum-FTC VII, Ranchi on the ground that no fresh
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materials either oral or documentary seem to have been collected
and as such, prayer for reinvestigation was disallowed on
22.2.2007. When the said order was challenged before this Court in
W.P.(Cr.) No.112 of 2007, the order passed by the Additional
Judicial Commissioner was affirmed by holding that all the materials
are available on record which have been sought to be
reappreciated by the new investigating agency.
However, before that a representation seems to have made
on behalf of the petitioner before the Director General of Police,
Jharkhand as well as Superintendent of Police that injustice has
been done to the petitioner at the behest of some high
officials, as the petitioner is quite innocent and, therefore, request
was made for further investigation. On the said representation, one
D.P.Singh, Sub-Inspector of Police, Argora Police Station, Ranchi
made further investigation and submitted a report dated
17.12.2006 (Annexure A to the counter affidavit) to the Senior
Superintendent of Police. At the same time, enquiry in relation to
the alleged offence was also made by the Sub-Inspector of Police,
pursuant to direction given by Director General of Police, Jharkhand
and on holding investigation/ enquiry, a report dated 10.3.2008
(Annexure C to the counter affidavit) was submitted.
It further appears that when investigation with respect to
father-in-law and mother-in-law of the deceased got completed, a
supplementary charge sheet was submitted which contained
supplementary post mortem report but when it was found by the
petitioner that it does not contain the records relating to the
treatment of the deceased at Apollo Hospital and Central Coalfields
Limited, Central Hospital, Gandhinagar, prayer was made on behalf
of the petitioner to call for the same but the said prayer was
refused by the Additional Judicial Commissioner, Ranchi.However,
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before that, the petitioner had moved an interlocutory application
in W.P (Cr) No.112 of 2007 which had already been disposed of
whereby prayer was made to direct the CID to transmit the record
to the court but the said prayer was dismissed on the ground that
after dismissal of the writ application, the court became functuous
officio. However, liberty was given to the petitioner for filing an
appropriate application before the trial court. When the said prayer
was made, learned Additional Judicial Commissioner declined to call
for the same, vide order dated 16.9.2008 which has been sought
tobe quashed.
Learned counsel appearing for the petitioner submitted that
upon revelation of certain new materials showing innocence of the
petitioner when the prayer was made on behalf of the CID to allow
him to reinvestigate the matter, the court below did not allow CID
to reinvestigate the case and subsequently when certain materials
collected in course of reinvestigation were sought to be produced,
the court below again rejected the prayer though they are very
much essential for coming to jut decision of the case.
Learned counsel appearing for the petitioner submitted that
though the prayer has been made to direct the learned court to call
for the documents including the documents collected in course of
enquiry by the CID but he will be confining his prayer relating to
enquiry report dated 17.12.2006 (Annexure A to the counter
affidavit) and the documents which form part of the report and also
the report dated 10.3.2008 (Annexure C to the counter affidavit)
submitted to the Deputy Inspector General of police as the
materials collected in course of further investigation would be
essential for the court to arrive at just decision but the court has
refused the prayer and as such, there would be miscarriage of
justice.
5
In this respect it was further submitted that the State in his
counter affidavit has accepted about the submission of the
aforesaid reports to higher police officials and has also accepted
that those documents could not be submitted before the trial court.
However, statement has been made in the counter affidavit that
there would be no objection on the part of the respondent-State in
submitting the reports dated 17.12.2006 and 10.3.2008 of the
further investigations.
However, learned counsel appearing for the informant
submitted that earlier when the petitioner had moved before this
Court against the order under which prayer was refused to allow
CID to take up the matter for reinvestigation, this court affirmed
the order of the trial court by holding that no such material has
surfaced which warrants any further investigation and as such, this
application is also fit to be dismissed.
Having heard learned counsel appearing for the parties, it
does appear that the district police after finding prima facie
materials showing culpability of the petitioner submitted charge
sheet against him under sections 304A and 498A of the Indian
Penal Code. Thereupon when the petitioner and his parents craved
for justice from the higher district police officials including CID,
Additional Director General of Police, CID got the matter enquired
into and on submission of the report, when it was found that the
investigation made was tainted, an application was filed at the
instance of the CID for seeking permission for reinvestigation but
that was not allowed by the trial court, which order was affirmed
by this Court by holding that there appears to be no fresh materials
but that finding, according to learned counsel appearing for the
petitioner, seems to have inadvertently been recorded as during
investigation concerning other accused than the petitioner certain
6
documents relating to treatment of the deceased which, according
to the petitioner, would go to show about the innocence of the
petitioner though collected but were not submitted along with
supplementary charge sheet, though according to the reports
(Annexures A and C to the counter affidavit ) which were furnished
to the parents of the petitioner under the provision of Right to
Information Act, those documents had been collected by the
Investigating Officer earlier and the photo copy of those records
are part of the report but the Additional Judicial Commissioner
refused to call for the report on the ground that the report of the
CID or the district police after further investigation has neither
been forwarded nor submitted to the Magistrate as stipulated
under section 173(8) of the Code of Criminal Procedure and hence,
those reports cannot be considered to be the report in terms of
Section 173(8) of the Code of Criminal Procedure. Learned
Additional Judicial Commissioner does not seem to be correct in his
approach as under the criminal dispensation system doing justice is
the paramount consideration and that duty cannot be abdicated or
diluted and diverted by any manipulative means and as such, it is
the duty of the prosecutor as well as the court to ensure that full
materials facts are brought on the record so that there might not
be miscarriage of justice.
This proposition of law has been laid down by the Hon’ble
Supreme Court in a case of Zahira Habibulla H. Sheikh vs.
State of Gujrat [(2004) 4 SCC 158]. The Hon’ble Court further
says that sub-section (8) of Section 173 of the Code permits
further investigation and even dehors any direction from the court
as such, it is open to the police to conduct proper investigation,
even after the court took cognizance of any offence on the strength
of a police report earlier submitted.
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Under the circumstances, it was incumbent upon the Court
to call for those reports dated 17.12.2006 (Annexure A to the
counter affidavit) along with documents which form part of the
reports as well as report dated 10.3.2008 (Annexure C to the
counter affidavit) for its consideration while dealing with the matter
relating to discharge/framing of charge as those materials appear
to be relevant materials. Moreover, the Hon’ble Supreme Court
while disposing of Cr. App. No.1273 of 2005 has been pleased to
observe that sessions court may frame charge in this case having
regard to all relevant materials produced before it.
Under this situation, the order dated 16.9.2008 passed by
the Additional Judicial Commission-cum-FTC No.VII, Ranchi is
hereby set aside and the Additional Judicial Commissioner is
hereby directed to call for the aforesaid reports along with its
Annexures from the Investigating Agency, so that the same be
considered at the time of hearing on the point of discharge/
framing of charge.
Accordingly, this application is allowed.
(R.R.Prasad, J.)
ND/