Vinay Tyagi vs State of U.P. and Others

Amar Saran and Surendra Singh, JJ.—Heard Shri v. M. Zaidi, learned senior advocate for the Petitioner and learned Additional Government Advocate.

By means of this petition the Petitioner has prayed for stay of his arrest and reinvestigation in Case Crime No. 438 of 2005, u/s 302, I.P.C., P.S. Civil Lines, district Meerut.

Briefly the prosecution allegations mentioned in the F.I.R. lodged on 9.12.2005 at 9.20 a.m. by Dr. v. P. Singh, informant, were that his son Shailendra Pal Singh, advocate had been fired upon and done to death on 9.12.2005 by three unknown miscreants when he was washing his car in his house compound.

It is argued by the learned Counsel for the Petitioner that the co accused persons, Neeraj Bhati, Dharmendra alias Babi, Manoj Kumar Yadav who were charge - sheeted and tried were acquitted by the judgment dated 14.12.2006 passed by the Additional Sessions Judge, Court No. 15, Meerut in S.T. No. 772 of 2006. This order of acquittal was allowed to become final. The Senior Superintendent of Police, Meerut, Circle Officer (City), Meerut and the Station House Officer, P.S. Civil Lines, Meerut has however re - opened the case by commencing investigation against the Petitioner without seeking permission from the Magistrate, on the basis of the statement of the co - accused Neeraj, who had already been acquitted by the trial court on 14.12.2006. This it was submitted was not permissible in law.

Learned Counsel has placed reliance on the decision of the Hon''ble Supreme Court in T.T. Antony v. State of Kerala and Ors. 2001 SCC (Cri) 1048: 2001 (2) ACR 1510 (SC), for the proposition that after the registration of the F.I.R., No. fresh F.I.R. could be lodged in respect of any further material that is disclosed in respect of the same offence. For conducting investigation subsequently on receipt of further information pertaining to the same incident, the leave of the Court would be required and that it was a paramount need to protect the citizen from false implication. Only three accused were said to have arrived at the scene of the crime, who were tried and acquitted by the trial court. No. additional accused like the Petitioner could be prosecuted at a subsequent stage.

Learned Counsel also referred to the decision of the Apex Court in Mithabhai Pashabhai Patel and Ors. v. State of Gujarat, (2009) 2 SCC (Cri) 1047, for the proposition that re - investigation was not permissible, although further investigation may not be objected to.

Learned Additional Government Advocate has refuted these contentions and argued that the Petitioner has been implicated not only on the basis of the statement of the co - accused, but also on the basis of the statements of the witnesses, i.e., the informant Dr. v. P. Singh, which was recorded on 21.3.2010 and the statements of the witnesses Narendra Singh and Neeraj Singh which were recorded on 2.4.2010 and 4.4.2010 respectively. Learned A.G.A. further stated that the deceased had been murdered in a conspiracy hatched by the Petitioner and the co - accused Badan Singh alias Battay and there is No. fetter on further investigation, so far as these newly added accused was concerned. It would be a travesty of justice and the interest of society would not be protected if a crime has been committed and the accused who are initially prosecuted are acquitted, and subsequently even when material reaches the hands of the police revealing that some other persons were involved, the police is prevented from investigating into the matter to find out whether the said newly added accused persons are actually involved in the crime or not. Also the fetter on reinvestigation if at all, of the same accused may have been placed on the principle of autre fois acquit or in view of Section 300, Cr. P.C., but so far as the Petitioner Vinay Tyagi is concerned he was not at all named as involved at the stage when the other accused Neeraj Bhati, Dharmendra alias Bobby and Manoj Kumar Yadav were tried and acquitted because the witnesses had turned hostile. But his name surfaced subsequently when the larger conspiracy was unearthed by the police. The Court should not lose sight on the fact that a grave offence u/s 302, I.P.C. is being investigated here. No. stone should be left upturned for tracing out the real accused and for booking them for the crime.

Moreover, we find that the Petitioner has also challenged the commencement of the investigation against the Petitioner by means of Criminal Misc. Application No. 7818 of 2009, u/s 482, Cr.P.C. The learned single Judge dismissed the said application by an order dated 10.4.2009 by observing that it was for the trial Judge - I to examine whether the principle of stare decisis applies on the basis of the subsequent statement of Manoj and the High Court was precluded from considering that evidence or the evidence contained in the case diary. The learned single Judge, therefore, refused to quash the proceedings in Case Crime No. 438 of 2005, under Sections 302/148/147/149/120, I.P.C., police station Civil Lines, district Meerut pending in the Court of C.J.M., Meerut against the Petitioner, although the Petitioner was given permission to move the trial court with a discharge application and the trial court was directed to consider the same in accordance with law laid down by the Apex Court on the point. The trial Judge was also directed to consider the bail on the same day after giving an opportunity to the Public Prosecutor.

We think that after the disposal of the application u/s 482, Cr. P.C. it is an abuse of the process of Court by the Petitioner to again virtually raise the same prayers by means of the present writ petition.

It may be further mentioned that T.T. Antony''s case (supra) relied on by the Petitioner has been impliedly distinguished in the case of Nirmal Singh v. State of Punjab, 2001 (1) SCC 441, wherein after considering the conspectus authorities on the point, it has been held that if a new or larger conspiracy is pointed out or some new facts are brought to light, there is No. fetter on the filing of a new F.I.R. for investigation or for further investigation into an offence. It was observed in Nirmal Singh Kahlon (supra) in para 26 that "Fair investigation and fair trial are concomitant to preservation of fundamental right of an accused under Article 21 of the Constitution. But the State has a larger obligation, i.e., to maintain law and order, public order and preservation of peace and harmony in the society. A victim of a crime, thus, is equally entitled to a fair investigation."

In view of what has been indicated hereinabove, we find No. force in this petition. It is accordingly dismissed with costs.