Kare Singh vs State of U.P. and Hakim Singh

Amar Saran, J.—This application has been filed with a prayer for setting aside the order dated 6.12.2005 passed in Case Crime No. 3 of 2004 (Hakim Singh v. S.P. Yadav) and also to quash the process of re-investigation, pursuant to the impugned order, passed by CJM, Agra. It is also prayed that no coercive measures be taken pursuant to the aforesaid impugned order.

The allegations in the FIR lodged on 20.1.2004 at 11.45 am by informant, Hakim Singh, at PS Hariparvat, District Agra, were that the applicant, who was a jailer, along with some other jail officials gave a severe beating to the deceased, Siya Ram, who was the brother of the complainant, in the jail premises, which resulted in his death. The accused also tried to conceal the evidence against them.

It was alleged in the FIR that Siya Ram was sent to jail on 6.8.2003 by showing a fake police encounter and a case was registered against him at Case Crime Nos. 85 of 2003 under Sections 307 IPC and 86/2003 under the Arms Act. Although the deceased had been granted bail in both the cases, on account of his poverty he could not furnish bail bonds and was not released. The jail officials were demanding of Rs. 750/- from him as a price for saving him from the barbarity that was being perpetrated on him in the jail premises and on his failure to pay the said amount, the accused tied up his hands and legs and assaulted him brutally. This manner of assault went on for many months. It was alleged that the applicant was personally supervising the said beatings with lathis and shoes meted out to Siya Ram by Circle in charge Vir Pal, Constable Yogesh and five or six other constables. They even forced the deceased to collect human faeces. Even though, the jail superintendent. SP Yadav, had information of these beatings, he did not interfere. The deceased was unable to walk around because of the beatings he had received. On 13.12.2003 on receiving the information that the applicant and other jail officials and constables had murdered his brother, the informant reached the district jail. He saw many marks of injuries on his brother''s dead body. This fact was disclosed to the informant by many jail inmates but they were afraid to give their names as witnesses for fear of reprisals. In order to save themselves and to conceal the evidence, some prisoners were intimidated into giving statements that the deceased was insane and he had caused his own death by banging his head against the wall whereas the postmortem report showed as many as 14 injuries on the dead body. After receiving the postmortem report the informant had lodged the FIR dated 18.12.2003. However it appears that the FIR was only registered on 20.1.2004 at 11.45 am after an order for registration of the case was passed u/s 156(3) Cr.P.C. by a Magistrate.

By a short application, which gave no reasons, a final report was submitted on 22.1.2004 by the investigating officer of PS Hariparvat stating that no case u/s 302/201 was disclosed against the accused, S.P. Yadav and others, and no evidence could be collected that the applicant and the other jail officials had caused the death of the deceased.

On 3.12.2005 an application u/s 173(8) Cr.P.C. was moved by Inspector, CBCID, Agra, before the CJM, Agra, through the A.P.O. seeking permission for re-investigation into the matter on the ground that the Government desired fresh investigation on the recommendation of the National Human Rights Commission. Thereafter, an order was passed by the CJM. on 6.12.2005 setting aside the final report and granted permission to the Inspector, CB CID, Agra, to re-investigate the case.

Principally it was argued by the learned Counsel, placing reliance on the decision of K. Chandra Sekhar, etc. v. State of Kerala and Ors. (37) 1998 ACC 136, that an order for re-investigation was illegal and only an order for further investigation could be passed in view of Section 173(2) and 173(8) Cr.P.C. In paragraph 12 of the affidavit filed in support of this application it is also stated that alter a thorough investigation the final report had been submitted and the order allowing the application for re-investigation had been passed by the CJM in a mechanical and arbitrary manner.

In my view, describing an investigation as a ''re-investigation'', and not as a ''further investigation'', could at best be described as an error in nomenclature. Nothing much would turn on the fact whether the learned Magistrate has used the word re-investigation'' in place of the expression ''further investigation'' and the only amendment if at all, that is needed in the order of the Magistrate dated 6.12.2005 is to read the word ''further investigation'' in place of ''reinvestigation''.

It may be noted that in the case of K. Chandra Sekhar (supra) the investigation had been handed over to the CBI by the State Government but subsequently it was withdrawn from it and in those circumstances the Court had observed that once the investigation had been handed over to the CBL there should be no re-investigation by the local police and further investigation should be conducted by the CBI. In the present case, no question of withdrawal of the case from the local police was involved, as the investigation by the local police had been concluded in two days by submitting a final report and re-investigation, (which ought to have read as ''further investigation'') by the CB CID had been ordered by the State Government.

There is wide amplitude of powers when the re-investigation or further investigation is conducted as held in Hemant Dhasmane Vs. Central Bureau of Investigation and Another, of the said decision may be noted in this regard:

But when the report is against the allegations contained in the complaint and concluded that no offence has been committed by any person it is open to the Court to accept the report after hearing the complainant at whose behest the investigation had commenced. If the Court feels, on a perusal of such a report that the alleged offences have in fact been committed by some persons the Court has the power to ignore the contrary conclusions made by the Investigating Officer in the final report. Then it is open to the Court to independently apply its mind to the facts emerging therefrom and can even take cognizance of the offences which appear to him to have been committed, in exercise of his power u/s 190(1)(b) of the Code. The third option is the one adumbrated in Section 173(8) of the Code. That Sub-section reads thus:

Nothing in this Section shall be deemed to preclude further investigation in respect of an offence after a report under Sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of Sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under Sub-section (2).

Although the said Sub-section does not, in specific terms, mention about the powers of the Court to order further investigation the power of the police to conduct further investigation envisaged therein can be triggered into motion at the instance of the Court. When any such order is passed be a Court which has the jurisdiction to do so it would not be a proper exercise of revisional powers to interfere therewith because the further investigation would only be for the ends of justice. After the further investigation, the authority conducting such investigation can either reach the same conclusion and reiterate it or it can reach a different conclusion. During such extended investigation the officers can either act on the same materials or on other materials which may come to their notice. It is for the investigating agency to exercise its power when it is put back to that track. If they come to the same conclusion it is of added advantage to the persons against whom the allegations were made, and if the allegations are found false again the complainant would be in trouble. So from any point of view the Special Judge''s direction would be of advantage for the ends of justice. It is too premature for the High Court to predict that the Investigating Officer would not be able to collect any further material at all. That is an area which should have been left to the Investigating Officer to survey and recheck.

(Emphasis added)

There is no substance in another argument raised by the learned Counsel for the applicant, that an order for further investigation could only be passed if material existed which justified further investigation, and he had cited the decision in Ram Lal Narang Vs. State (Delhi Administration), in this connection. In my view in the circumstances of the case, when a final report was submitted within 2 days of the commencement of the investigation, when no reasons were mentioned why no case was disclosed against the applicant and other accused especially as the deceased had died in the jail premises with 14 injuries on his dead body, (which fact was even mentioned in the FIR) and which negated the case of the deceased having committed suicide by banging his head against the wall, and which were not explained at all in the final report submitted by the local police of PS Hariparvat. Agra, it could not be said that no grounds for further investigation existed. Nor could such a inference be reached that the earlier final report had been submitted after a thorough investigation and that the final report had not been submitted in a motivated manner because police officials were arraigned as accused.

There is also substance in the submission of the learned AGA that in view of the Full Bench decision in Ram Lal Yadav v. State 1989 UP Cri. 79 interference in an application is only possible after cognizance and not at the stage of investigation. There is also no ground to stay coercive measures against the applicant if they are needed for the purpose of investigation. I therefore find no force in the application preferred by the applicant which is dismissed in limine.