Babubhai Vs State of Gujarat .

REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1599 of 2010 (Arising out of SLP(Crl.) No. 2077 of 2010)

Babubhai …Appellant

Versus

State of Gujarat & Ors. …Respondents

WITH

CRIMINAL APPEAL NOS. 1600-1605 of 2010 (Arising out of SLP(Crl.) Nos. 3235-3240 of 2010)

State of Gujarat & Ors. …Appellants

Versus

Ganeshbhai Jakshibhai Bharwad & Ors. …Respondents

J U D G M E N T

Dr. B.S. CHAUHAN, J.

1. Leave granted.

2. These appeals and other connected appeals have been

preferred against the judgment and order dated 22.12.2009 of

the High Court of Gujarat at Ahmedabad, passed in Special

Criminal Application Nos. 1675/2008, 1679/2008 with Crl.

Misc. Application Nos. 8249/2009, 8361/2009, 8363/2009

and 7687/2009.

3. Facts and circumstances giving rise to the present cases

are that on 7.7.2008, some altercation took place between

members of the Bharwad and the Koli Patel communities over

the plying of rickshaws in the area surrounding Dhedhal

village of Distt. Ahmedabad, Gujarat. The Bharwad community

had been preventing the Koli Patels from running their

rickshaws in the said area.

On the next day, i.e. on 8.7.2008, case No. C.R.No.I-

154/2008, was registered at 17:30 hours in the Bavla Police

Station under Sections 147, 148, 149, 302, 307, 332, 333,

436 and 427 of the Indian Penal Code, 1860 (hereinafter called

as “IPC”) read with Section 135 of the Bombay Police Act, 1951

(for short “BP Act”) and Sections 3, 7 of Prevention of Damages

of Public Property Act, 1984 (for short “1984 Act”) for an

2

incident which occurred at Village Dhedhal, wherein Mr. M.N.

Pandya, Sub-Inspector of Police, Bavla Police Station has

stated that while he was patrolling in Bavla Town, he received

a message from H.C. Kanaiyalal, Police Station Officer, at

10.00 a.m. that some altercation/incident had taken place

between the two communities at Dhedhal Cross Roads. On

receiving the said information, he along with other police

personnel, rushed to the place of incident, however, by that

time the crowd had already dispersed. Thereafter, he received

information that a clash was going on between the said two

communities in Dhedhal village. Immediately, he contacted the

Control Room, as well as the Deputy Superintendent of Police

of Dholka, for further police support and rushed to the spot

where he found about 2000-3000 persons from both the

communities, all with sticks, dhariyas, swords etc., attacking

each other. The police resorted to teargas shells as well as to

lathi charges to disperse the crowd. Several rounds of firing

were resorted to in order to disperse the mob. In the incident,

more than 20 persons were injured and three houses of

members of the Bharwad community were set on fire. One

3

person, namely Ajitbhai Prahladbhai, also died. Several

police personnel were also injured. No person was named in

the said FIR.

4. Another FIR, being Case No. C.R.No. I-155 of 2008, was

registered at Bavla Police Station on the same date i.e.

8.7.2008 at 22:35 hrs by Babubhai Popatbhai Koli Patel

(appellant in SLP (Crl.) No.2077/2010 and respondent in SLP

(Crl.) Nos. 3235-3240/2010) (hereinafter called as

complainant), resident of village Vasna, Taluka Bavla, wherein

he alleged that an incident took place on the same day at 9:15

hours near Dhedhal village in which he named 18 persons as

accused. As per this FIR, an incident occurred on 7.7.2008 in

the evening at about 6.30 p.m. His cousin Jayantibhai

Gordhanbhai told him that when Budhabhai of their village

and two rickshaw-walas were taking passengers at Dhedhal

Chokdi, the Bharwads of Dhedhal village who were also plying

rickshaws, chhakdas etc. told the Koli Patels not to take

passengers from there and they took away the keys of the jeep,

beat up the Koli Patel boys, abused and threatened them and

told them not to bring jeeps and rickshaws to Dhedhal Chokdi.

4

Babubhai Popatbhai Koli Patel, complainant reached Dhedhal

Chokdi and met Budhabhai Laljibhai Koli Patel of his village

and his brother Jayantibhai Laljibhai and enquired about the

incident. They complained about browbeating and threatening

by the Bharwads as the Bharwads wanted that no one else

should bring jeeps and chhakdas to Dhedhal Chokdi. The

informant/complainant stated that Kantibhai Ratanbhai

Bharwad and other persons standing nearby told them to stop

and threats were made by the Bharwads. On the date of the

incident, when the informant was coming towards Dhedhal

village from Vasna, his cousin Vadibhai Pakhabhai’s tractor

and one chhakda rickshaw were passing through the road.

When they reached near Dhedhal village pond, the rickshaw

and tractor were halted, his car was also stopped and he got

down from the car and saw that 10 to 12 persons belonging to

the Bharwad community were assaulting his cousin Vadibhai

Pakhabhai and Amubhai Pakhabhai with sticks. They were

also assaulting the chhakda rickshaw-walas. He saw Ganesh

Jaksi of the Bharwad community of Dhedhal village having

tamancha-like weapon in his hand and instigating the other

5

persons to indulge in violence. He also saw Sanjay Chela

Bharwad, Dhiru Matam Bharwad, Sura Raiji Bharwad of

Dhedhal intercepting people going on the road and Karshan

Chako Bharwad, Moman Natha Bharwad, Kalu Sedhu

Bharwad, Kalu Hari Bharwad, Chinu Bhikhu Bharwad

assaulting Vadibhai Pakhabhai and Amubhai as well as the

chhakda rickshaw-wala saying that the road was not for them

and thus, they should not pass through it. The complainant

and Manubhai went to rescue Vadibhai. At that time,

Jayantibhai Laljibhai Patel of their village and Matambhai

Vadibhai Patel came on a motor cycle. They were also stopped

and all the persons jumped on them and started assaulting

and abusing them. He saw that Surabhai Raijibhai Bharwad

had inflicted stick blows on Manubhai due to which he was

injured and became unconscious. When the mob beat up

Manubhai, at that time, other Bharwads from Dhedhal village

had also arrived.

5. The Bharwads started beating passersby on vehicles, who

had worn clothes like Koli Patels and causing injuries to them.

The Bharwads made calls on mobile phones to call other

6

Bharwads. The Bharwads assaulted and killed Manubhai Koli

Patel and Ajitbhai Prahladbhai Koli Patel by assaulting them

with deadly weapons like revolver, dhariyas and sticks and

also caused serious injuries to Babubhai Popatbhai Koli Patel,

informant/complainant on his head and hand. They also

caused minor and major injuries to other persons.

6. On 9.7.2008, the inquest panchnama was carried out

and three dead bodies were sent for post mortem. The report

of the autopsy revealed a large number of injuries inflicted on

the deceased persons. Statements of injured witnesses, who

were admitted in Long Life Hospital, namely Dashratbhai

Popatbhai Patel (PW.26), Hemubhai Babubhai Patel (PW.12),

Jayantibhai Laljibhai (PW.14), Vadibhai Pakhabhai (PW.27)

were recorded on 10.07.2008. Statements of injured witness

Matambhai Vadibhai (PW.18) were recorded on 10.7.2008 and

21.7.2008.

7. The accused in both the cases filed Special Criminal

Application No. 1675/2008 praying for investigation of CR

No.I-154/2008 registered with Bavla Police Station by an

independent agency like the CBI, Special Criminal Application

7

No. 1679/2008 for quashing of C.R. No.I-154/2008 and C.R.

No.I-155/2008 registered with Bavla Police Station. Three

applications being Criminal Misc. Application Nos.

8249/2009, 8361/2009 and 8363/2009 to quash and set

aside the proceedings undertaken by Sessions Court during

the pendency of the applications filed earlier were made.

Twenty two persons were arrested. On completion of

investigation, the charge sheet was filed on 10.10.2008 against

12 accused persons and the case was committed to Sessions

Court.

8. By judgment and final order dated 22.12.2009, the High

Court quashed the FIR registered as CR No.I-155/2008 and

clubbed the investigation of the FIR along with the

investigation of the other FIR bearing CR No.I-154/2008 to

the extent it was feasible. The court transferred the

investigation to the State CID Crime Branch and directed the

new Investigating Officer to investigate the Bavla Police Station

C.R.No.I-154/2008 as it stood earlier prior to the deletion of

Section 302 IPC with a further clarification that quashing of

the FIR registered by Bavla Police Station i.e. C.R.No.I-155 of

8

2008 could not mean that accused in respect of the said FIR

has been discharged of the offences as they would face the

charges in C.R. No.I-154/2008 and the accused who stood

arrested in connection with C.R.No.I-155 of 2008 would stand

arrested in connection with case C.R. No.I-154/2008. Hence,

these appeals.

9. Shri R.K. Abichandani, learned senior counsel appearing

for the appellant/complainant in C.R. No.I-155/2008, and

Shri Tushar Mehta, learned Additional Advocate General have

submitted that the High Court quashed the FIR without

appreciating that there are no common factors in both the

FIRs so as to indicate that both FIRs had arisen out of the

same transaction. Thus, the FIRs could not be clubbed; the

incident recorded in CR No. I-155/08 occurred prior in point

of time and facts recorded in both the FIRs make it evident

that there had been two separate incidents at two different

places and for distinct offences. In CR No. I-155/08, three

persons belonging to Koli Patel community had died and 26

persons of the same community were injured at the hands of

Bharwads, whereas no person from the Bharwad community

9

suffered any injury. Both the FIRs had been lodged specifying

that the FIR in CR No.I-155/08 has been in respect of the

incident occurred at 9.15 am while the incident involved in CR

No. I-154/08 has been in respect of incident occurred at 9.30

am. The incident first in time took place at Dhedhal Chokdi

(Cross Roads) while the other incident occurred in village

Dhedhal near the pond. The Court further erred in granting

the relief to persons/applicants before it who had been

absconding according to the Investigating Agency. Thus, their

applications could not have been entertained. The appeals

deserve to be allowed and the judgment and order of the High

Court is liable to be set aside.

10. On the contrary, Shri U.U. Lalit, Shri C.A. Sundaram,

Shri Rajeev Dhavan, and Shri P.S. Narsimha, learned senior

counsel appearing for the respondents-accused in C.R. No.I-

155/2008, have opposed the appeals contending that the High

Court reached the correct conclusion that both the crimes

were two parts of the same transaction. They occurred at the

same place and the version given by Babubhai Popatbhai Koli

Patel in C.R. No.I-155/2008 cannot be considered a counter

1

version giving rise to a cross case. Thus, no interference with

the impugned judgment and order of the High Court is

required.

11. We have considered the rival submissions made by

learned counsel for the parties and perused the record.

Two FIRs.

12. In Ram Lal Narang Vs. Om Prakash Narang & Anr. AIR

1979 SC 1791, this Court considered a case wherein two FIRs

had been lodged. The first one formed part of a subsequent

larger conspiracy which came to the light on receipt of fresh

information. Some of the conspirators were common in both

the FIRs and the object of conspiracy in both the cases was

not the same. This Court while considering the question as to

whether investigation and further proceedings on the basis of

both the FIRs was permissible held that no straitjacket

formula can be laid down in this regard. The only test

whether two FIRs can be permitted to exist was whether the

two conspiracies were identical or not. After considering the

facts of the said case, the Court came to the conclusion that

1

both conspiracies were not identical. Therefore, lodging of two

FIRs was held to be permissible.

13. In T.T. Antony Vs. State of Kerala & Ors. (2001) 6 SCC

181, this Court dealt with a case wherein in respect of the

same cognizable offence and same occurrence two FIRs had

been lodged and the Court held that there can be no second

FIR and no fresh investigation on receipt of every subsequent

information in respect of the same cognizable offence or

same occurrence giving rise to one or more cognizable

offences. The investigating agency has to proceed only on the

information about commission of a cognizable offence which is

first entered in the Police Station diary by the Officer In-charge

under Section 158 of the Code of Criminal Procedure, 1973

(hereinafter called the Cr.P.C.) and all other subsequent

information would be covered by Section 162 Cr.P.C. for the

reason that it is the duty of the Investigating Officer not merely

to investigate the cognizable offence report in the FIR but also

other connected offences found to have been committed in the

course of the same transaction or the same occurrence and

the Investigating Officer has to file one or more reports under

1

Section 173 Cr.P.C. Even after submission of the report under

Section 173(2) Cr.P.C., if the Investigating Officer comes

across any further information pertaining to the same

incident, he can make further investigation, but it is desirable

that he must take the leave of the court and forward the

further evidence, if any, with further report or reports under

Section 173(8) Cr.P.C. In case the officer receives more than

one piece of information in respect of the same incident

involving one or more than one cognizable offences such

information cannot properly be treated as an FIR as it would,

in effect, be a second FIR and the same is not in conformity

with the scheme of the Cr.P.C. The Court further observed as

under:

“A just balance between the fundamental rights of the citizens under Articles 19 and 21 of the Constitution and the expansive power of the police to investigate a cognizable offence has to be struck by the court. There cannot be any controversy that sub-section (8) of Section 173 CrPC empowers the police to make further investigation, obtain further evidence (both oral and documentary) and forward a further report or reports to the Magistrate……. However, the sweeping power of investigation does not warrant subjecting a citizen each time to fresh investigation by the police in respect of the

1

same incident, giving rise to one or more cognizable offences, consequent upon filing of successive FIRs whether before or after filing the final report under Section 173(2) CrPC. It would clearly be beyond the purview of Sections 154 and 156 CrPC, nay, a case of abuse of the statutory power of investigation in a given case. In our view a case of fresh investigation based on the second or successive FIRs, not being a counter-case, filed in connection with the same or connected cognizable offence alleged to have been committed in the course of the same transaction and in respect of which pursuant to the first FIR either investigation is under way or final report under Section 173(2) has been forwarded to the Magistrate, may be a fit case for exercise of power under Section 482 CrPC or under Articles 226/227 of the Constitution.” (Emphasis added).

14. In Upkar Singh Vs. Ved Prakash & Ors. (2004) 13 SCC

292, this Court considered the judgment in T.T. Antony

(supra) and explained that the judgment in the said case does

not exclude the registration of a complaint in the nature of

counter claim from the purview of the court. What had been

laid down by this Court in the aforesaid case is that any

further complaint by the same complainant against the same

accused, subsequent to the registration of a case, is prohibited

under the Cr.P.C. because an investigation in this regard

1

would have already started and further the complaint against

the same accused will amount to an improvement on the facts

mentioned in the original complaint, hence, will be prohibited

under section 162 Cr.P.C. However, this rule will not apply to

a counter claim by the accused in the first complaint or on his

behalf alleging a different version of the said incident. Thus,

in case, there are rival versions in respect of the same episode,

the Investigating Agency would take the same on two different

FIRs and investigation can be carried under both of them by

the same investigating agency and thus, filing an FIR

pertaining to a counter claim in respect of the same

incident having a different version of events, is

permissible.

15. In Rameshchandra Nandlal Parikh Vs. State of Gujarat

& Anr. (2006) 1 SCC 732, this Court reconsidered the earlier

judgment including T.T. Antony (supra) and held that in case

the FIRs are not in respect of the same cognizable offence or

the same occurrence giving rise to one or more cognizable

offences nor are they alleged to have been committed in the

course of the same transaction or the same occurrence as the

1

one alleged in the First FIR, there is no prohibition in

accepting the second FIR.

16. In Nirmal Singh Kahlon Vs. State of Punjab & Ors.

(2009) 1 SCC 441, this Court considered a case where an FIR

had already been lodged on 14.6.2002 in respect of the

offences committed by individuals. Subsequently, the matter

was handed over to the Central Bureau of Investigation (CBI),

which during investigation collected huge amount of material

and also recorded statements of large number of persons and

the CBI came to the conclusion that a scam was involved in

the selection process of Panchayat Secretaries. The second

FIR was lodged by the CBI. This Court after appreciating the

evidence, came to the conclusion that matter investigated by

the CBI dealt with a larger conspiracy. Therefore, this

investigation has been on a much wider canvass and held that

second FIR was permissible and required to be investigated.

The Court held as under:

“The second FIR, in our opinion, would be maintainable not only because there were different versions but when new discovery is made on factual foundations. Discoveries may be made by the police authorities at a

1

subsequent stage. Discovery about a larger conspiracy can also surface in another proceeding, as for example, in a case of this nature. If the police authorities did not make a fair investigation and left out conspiracy aspect of the matter from the purview of its investigation, in our opinion, as and when the same surfaced, it was open to the State and/or the High Court to direct investigation in respect of an offence which is distinct and separate from the one for which the FIR had already been lodged.” (Emphasis added).

17. Thus, in view of the above, the law on the subject

emerges to the effect that an FIR under Section 154 Cr.P.C. is

a very important document. It is the first information of a

cognizable offence recorded by the Officer In-Charge of the

Police Station. It sets the machinery of criminal law in motion

and marks the commencement of the investigation which ends

with the formation of an opinion under Section 169 or 170

Cr.P.C., as the case may be, and forwarding of a police report

under Section 173 Cr.P.C. Thus, it is quite possible that more

than one piece of information be given to the Police Officer In-

charge of the Police Station in respect of the same incident

involving one or more than one cognizable offences. In such a

case, he need not enter each piece of information in the Diary.

1

All other information given orally or in writing after the

commencement of the investigation into the facts mentioned in

the First Information Report will be statements falling under

Section 162 Cr.P.C.

In such a case the court has to examine the facts and

circumstances giving rise to both the FIRs and the test of

sameness is to be applied to find out whether both the FIRs

relate to the same incident in respect of the same occurrence

or are in regard to the incidents which are two or more parts of

the same transaction. If the answer is affirmative, the second

FIR is liable to be quashed. However, in case, the contrary is

proved, where the version in the second FIR is different and

they are in respect of the two different incidents/crimes, the

second FIR is permissible. In case in respect of the same

incident the accused in the first FIR comes forward with a

different version or counter claim, investigation on both the

FIRs has to be conducted.

18. The instant case is required to be examined in the light of

the aforesaid settled legal propositions. If the two FIRs are

read together, it becomes clear that the incident started in the

1

morning as per both the FIRs. C.R. No.I-154/2008, lodged by

Mr. M.N. Pandya, Sub Inspector of Police stated that he

reached the place of occurrence after receiving the information

from the police station and found that mob had already

dispersed. The case of the prosecution is that when the police

reached the place of occurrence of the first incident, the mob

had already dispersed, could not be correct for the reason that

some of the witnesses have stated that the clash was going on

when the police arrived and police resorted to force to disperse

the mob. In fact, it was the police who summoned the

ambulances which took the injured persons to hospitals. In

the first incident as per the said FIR the place of occurrence

had been village Dhedhal near the pond. In the pond, the

damaged tractor, motor cycle and chhakda were found. Mr.

M.N. Pandya called the extra police force and went inside the

village. He found 2000-4000 persons and witnessed a free

fight between them. The Koli Patels had surrounded some of

the houses of the Bharwads. Some persons had been locked

inside their houses and they had also put their houses at fire.

The superior officers also came there. Police has used force to

1

disperse the mob in the said incident and there were heavy

casualties and there was loss of lives also. If we examine

minutely the FIR in C.R. No.I-155/2008, the incident also

occurred near the pond in the village Dhedhal. The damaged

tractor, motor cycle and chhakda were there in the pond. One

person Ajitbhai Prahladbhai was killed in the incident.

Babubhai Popatbhai Koli Patel also got injured. While

comparing both the FIRs there is no doubt that both the

incidents had occurred at the same place in close proximity of

time, therefore, they are two parts of the same transaction.

More so, the death of Ajitbhai Prahladbhai has been

mentioned in both the FIRs. From the report for deletion of

Section 302 IPC, it is apparent that it is not the case of the

Investigating Officer that the death of Ajitbhai Prahladbhai

had not occurred during the course of the incident in

connection with which C.R. No.I-154 of 2008 came to be

registered.

19. It is also evident that houses of the Bharwads were inside

the village in contiguous areas and the offence had spread

over the entire area as is evident from the panchnama of the

2

scene of offence drawn in C.R. No.I-155 of 2008 as well as

from the contents of the said FIR. Same situation regarding

the place of occurrence appears from the panchnama of the

scene of incident in C.R. No. I-154/2008. Panchnama of the

scene of incident of C.R. No.I-154/2008 includes the scene of

occurrence of C.R. No.I-155/2008 which makes it clear that

both the FIRs pertain to the two crimes committed in the same

transaction. The scene of offence panchnamas establish

clearly that the incidents in both the cases could not be

distinct and independent of each other. In fact, it is nobody’s

case that incident relating to CR No.I-155/08 occurred at

Dhedhal Chokdi (Cross-Roads).

20. In view of the above, we are of the considered opinion

that the High Court reached the correct conclusion and

second FIR C.R. I-155/2008 was liable to be quashed.

Tainted Investigation

21. In some of the applications before the High Court,

allegations of bias malafide against the investigating agency

had been made submitting that investigation had not been fair

and impartial and therefore, it stood vitiated because of

2

material irregularities and therefore, investigation be handed

over to some independent agency like CBI. The Court

examined the grievance of those applicants and recorded the

following findings:-

(i) In spite of the fact that serious allegations had

been made as regards the manner in which

investigation had been made in the affidavit in reply,

such allegations had not been denied;

(ii) The investigation has been one-sided. Statements

of witnesses belonging to only one community had

been recorded, and the members of the other

community had been totally excluded from recording

their statements, indicating bias in favour of one

community and against the other;

(iii) In CR No.I-154/2008 several Koli Patels had been

arraigned as accused, many of them are not named by

any witness in their statements annexed with the

charge-sheet. Thus, it was not clear as to how the

said persons have been implicated in the offences in

question. Such accused would certainly go scot-free,

which clearly indicates the nature of investigation

which has been carried out in respect of one of the

FIRs;

(iv) Not a single witness named in the charge sheet

belongs to the Bharwad community and despite the

2

fact that statements of witnesses reveal that persons

belonging to both the communities have sustained

injures, in the charge sheet, as well as the statements

placed on record by the prosecution, not a single

person belonging to the Bharwad community is shown

to have sustained injuries;

(v) Though the witnesses refer to names of the

Bharwads whose houses were set on fire after shutting

them in, none of the persons belonging to the Bharwad

community are cited as witnesses nor are their

statements recorded. This is the nature of the

investigation carried out in respect of C.R.No. I-154 of

2008;

(vi) When in respect of the second FIR pertaining to

the alleged first incident, the informant was in a

position to name all the accused belonging to the

Bharwad community along with their father’s name

and surname, it is surprising that in the investigation

carried out by the Investigating Officer no statement of

any person belonging to the Bharwad community

naming any person belonging to the Koli Patel

community as having taken part in the incident has

been recorded;

(vii) The offence has been bifurcated into two parts

and one serious in nature and the other a much

diluted one. Even in the diluted offence, some persons

2

belonging to one community have been named as

accused though no material has been collected to

connect most of them with the offence in question.

There is nothing to indicate as to how the said names

came to be revealed. All the accused belonging to the

same community, i.e., Koli Patels have been shown to

be absconding accused in the charge-sheet filed

against some of the accused belonging to the Bharwad

community despite the fact that they are shown as

witnesses in another FIR and their statements had

been recorded by the Investigating Officer;

(viii) Accused of one case have been shown by the

prosecution in the charge sheet as absconding

accused but they had been attending court

proceedings in the company of the Investigating Officer

in another case;

(ix) There is over-action in relation to one FIR and

complete inaction in so far as the another FIR is

concerned. The resultant effect of the poor

investigation carried out in connection with one FIR

would be that all the accused of the said FIR would be

acquitted and only the accused of another FIR which

belongs to one community would have to face the

prosecution;

(x) In such a fact-situation, persons who would

otherwise be co-accused, would be witness against

2

them in the case arising out of the another FIR which

would cause immense prejudice to them;

(xi) Deletion of offence under section 302 IPC from

the FIR CR No.I-154/2008 was totally unwarranted;

and

(xii) Charge-sheet against same set of 12 persons had

been filed in relation to both the FIRs. However,

there was no evidence against the said persons in

connection with some of the offences and the

prosecution was ready and preparing to get them

discharged under section 169 Cr.P.C.

On appreciation/consideration of the material available

on record, the High Court recorded the aforesaid findings of

fact and came to the following conclusion:

“The manner in which the investigation has been carried out as well as the manner in which these cases have been conducted before this Court, clearly indicate that the investigation is not fair and impartial and as such the investigating agency cannot be permitted to continue.”

Thus, it is evident from the above that not only investigation in

respect of both the FIRs had not been fair and has caused

serious prejudice to one party but even before the High Court

2

conduct of the party and investigating agency has not been

fair.

22. None of the learned counsel appearing for the parties has

raised any doubt about the correctness of those findings,

rather all of them have fairly conceded that investigation was

not conducted properly.

23. The High Court, in view of the fact that there has not

been a fair investigation, transferred the case to State CBCID,

however, it issued the following directions:

“The investigation in respect of the first information report registered vide Bavla Police Station I-C.R. No.154 of 2008 is transferred to the State CID Crime Branch. Both the Investigating Officers of the aforesaid FIRs shall hand over the investigation papers to the new investigating agency. The Investigating Officer who is entrusted with the investigation shall carry out further investigation in Bavla Police Station I-C.R. No.154 of 2008 as it stood earlier prior to the report for deletion of section 302 IPC. It is clarified that quashing of the first information report registered vide Bavla Police Station I-C.R. No.155 of 2008 does not mean that the accused in respect of the said FIR shall stand discharged of the offences. They shall now face the said charges in the first information report registered vide Bavla Police Station I-C.R. No.154 of 2008. The accused who are arrested in connection with Bavla Police Station I-C.R. No.155 of 2008 shall stand

2

arrested in connection with Bavla Police Station I-C.R. No.154 of 2008.”

24. We fail to understand that if the High Court has quashed

the FIR in C.R.No. I-155/2008, how the charge sheet, which

was filed after investigation of allegations made therein, could

survive and be directed to be read in another case and other

consequential orders be also read in another case.

Further in case the High Court came to the conclusion

that investigation was totally biased, unfair and tainted, the

investigation had to be held to have stood vitiated and as a

consequence thereof charge sheets filed in both the cases

could have become inconsequential.

25. The investigation into a criminal offence must be free

from objectionable features or infirmities which may

legitimately lead to a grievance on the part of the accused that

investigation was unfair and carried out with an ulterior

motive. It is also the duty of the Investigating Officer to

conduct the investigation avoiding any kind of mischief and

harassment to any of the accused. The Investigating Officer

should be fair and conscious so as to rule out any possibility

2

of fabrication of evidence and his impartial conduct must

dispel any suspicion as to its genuineness. The Investigating

Officer “is not to bolster up a prosecution case with such

evidence as may enable the court to record conviction but to

bring out the real unvarnished truth”. (Vide R.P. Kapur Vs.

State of Punjab AIR 1960 SC 866; Jamuna Chaudhary &

Ors. Vs. State of Bihar AIR 1974 SC 1822; and Mahmood

Vs. State of U.P. AIR 1976 SC 69).

26. In State of Bihar Vs. P.P. Sharma AIR 1991 SC 1260,

this Court has held as under:

“Investigation is a delicate painstaking and dextrous process. Ethical conduct is absolutely essential for investigative professionalism. ….Therefore, before countenancing such allegations of mala fides or bias it is salutary and an onerous duty and responsibility of the court, not only to insist upon making specific and definite allegations of personal animosity against the Investigating Officer at the start of the investigation but also must insist to establish and prove them from the facts and circumstances to the satisfaction of the court. ….Malice in law could be inferred from doing of wrongful act intentionally without any just cause or excuse or without there being reasonable relation to the purpose of the exercise of statutory power….The word ‘personal liberty’ (under Article 21 of the Constitution) is of the widest amplitude

2

covering variety of rights which goes to constitute personal liberty of a citizen. Its deprivation shall be only as per procedure prescribed in the Code and the Evidence Act conformable to the mandate of the Supreme Law, the Constitution. The investigator must be alive to the mandate of Article 21 and is not empowered to trample upon the personal liberty arbitrarily….. An Investigating Officer who is not sensitive to the constitutional mandates may be prone to trample upon the personal liberty of a person when he is actuated by mala fides.”

27. In Navinchandra N. Majithia Vs. State of Meghalaya &

Ors. AIR 2000 SC 3275, this Court considered a large

number of its earlier judgments to the effect that investigating

agencies are guardians of the liberty of innocent citizens.

Therefore, a heavy responsibility devolves on them of seeing

that innocent persons are not charged on an irresponsible and

false implication. There cannot be any kind of interference or

influence on the investigating agency and no one should be

put through the harassment of a criminal trial unless there

are good and substantial reasons for holding it. Cr.P.C. does

not recognize private investigating agency, though there is no

bar for any person to hire a private agency and get the matter

2

investigated at his own risk and cost. But such an

investigation cannot be treated as investigation made under

law, nor can the evidence collected in such private

investigation be presented by Public Prosecutor in any

criminal trial. Therefore, the court emphasised on

independence of the investigating agency and deprecated any

kind of interference observing as under:

“The above discussion was made for emphasising the need for official investigation to be totally extricated from any extraneous influence….. All complaints shall be investigated with equal alacrity and with equal fairness irrespective of the financial capacity of the person lodging the complaint. ….A vitiated investigation is the precursor for miscarriage of criminal justice.”

(Emphasis added)

28. In Nirmal Singh Kahlon (supra), this Court held that a

concept of fair investigation and fair trial are concomitant to

preservation of the fundamental right of the accused under

Article 21 of the Constitution of India.

29. In Manu Sharma Vs. State (NCT of Delhi) (2010) 6 SCC

1, one of us (Hon’ble P. Sathasivam, J.) has elaborately dealt

with the requirement of fair investigation observing as under:-

3

“…… The criminal justice administration system in India places human rights and dignity for human life at a much higher pedestal. In our jurisprudence an accused is presumed to be innocent till proved guilty, the alleged accused is entitled to fairness and true investigation and fair trial and the prosecution is expected to play balanced role in the trial of a crime. The investigation should be judicious, fair, transparent and expeditious to ensure compliance with the basic rule of law. These are the fundamental canons of our criminal jurisprudence and they are quite in conformity with the constitutional mandate contained in Articles 20 and 21 of the Constitution of India….

It is not only the responsibility of the investigating agency but as well as that of the courts to ensure that investigation is fair and does not in any way hamper the freedom of an individual except in accordance with law. Equally enforceable canon of the criminal law is that the high responsibility lies upon the investigating agency not to conduct an investigation in tainted and unfair manner. The investigation should not prima facie be indicative of a biased mind and every effort should be made to bring the guilty to law as nobody stands above law dehors his position and influence in the society….

The Court is not to accept the report which is contra legem (sic) to conduct judicious and fair investigation….

3

The investigation should be conducted in a manner so as to draw a just balance between citizen’s right under Articles 19 and 21 and expansive power of the police to make investigation…..”.

30. This Court in K. Chandrasekhar Vs. State of Kerala &

Ors. (1998) 5 SCC 223; Ramachandran Vs. R.

Udhayakumar & Ors. (2008) 5 SCC 413; and Nirmal Singh

Kahlon (supra); Mithabhai Pashabhai Patel & Ors. Vs. State

of Gujarat (2009) 6 SCC 332; and Kishan Lal Vs.

Dharmendra Bafna (2009) 7 SCC 685 has emphasised that

where the court comes to the conclusion that there was a

serious irregularity in the investigation that had taken place,

the court may direct a further investigation under Section

173(8) Cr.P.C., even transferring the investigation to an

independent agency, rather than directing a re-investigation.

“Direction of a re-investigation, however, being forbidden in

law, no superior court would ordinarily issue such a

direction.”

31. Unless an extra ordinary case of gross abuse of power is

made out by those in charge of the investigation, the court

3

should be quite loathe to interfere with the investigation, a

field of activity reserved for the police and the executive. Thus,

in case of a mala fide exercise of power by a police officer the

court may interfere. (vide: S.N. Sharma Vs. Bipen Kumar

Tiwari & Ors. AIR 1970 SC 786).

32. In Kashmeri Devi Vs. Delhi Administration & Anr. AIR

1988 SC 1323, this Court held that where the investigation

has not been conducted in a proper and objective manner it

may be necessary for the court to order for fresh investigation

with the help of an independent agency for the ends of justice

so that real truth may be revealed. In the said case, this court

transferred the investigation to the CBI, after coming to the

conclusion that investigation conducted earlier was not fair.

33. The above referred to judgments of this Court make it

clear that scheme of investigation, particularly, Section 173(8)

Cr.P.C. provides for further investigation and not of re-

investigation. Therefore, if the Court, comes to the conclusion

that the investigation has been done in a manner with an

object of helping a party, the court may direct for further

investigation and ordinarily not for re-investigation.

3

The expression ordinarily means normally and it is used

where there can be an exception. It means in the large

majority of cases but not invariably. “Ordinarily” excludes

“extra-ordinary” or “special circumstances”. (vide: Kailash

Chandra Vs. Union of India AIR 1961 SC 1346; Eicher

Tractors Ltd., Haryana Vs. Commissioner of Customs,

Bombay AIR 2001 SC 196; and State of A.P. Vs. Sarma Rao

& Ors. AIR 2007 SC 137).

Thus, it is evident that in exceptional circumstances, the

court in order to prevent the miscarriage of criminal justice, if

considers necessary, it may direct for investigation de novo

wherein the case presents exceptional circumstances.

34. In the instant case, admittedly, the High Court has given

detailed reasons for coming to the conclusion that the

investigation has been totally one-sided, biased and mala fide.

One party has been favoured by the investigating agency. The

natural corollary to this finding is that the other party has

been harassed in an unwarranted manner. Thus, the cause of

the other party has been prejudiced. The charge sheets filed

by the investigating agency in both the cases are against the

3

same set of accused. A charge sheet is the outcome of an

investigation. If the investigation has not been conducted

fairly, we are of the view that such vitiated investigation

cannot give rise to a valid charge sheet. Such investigation

would ultimately prove to be precursor of miscarriage of

criminal justice. In such a case the court would simply try to

decipher the truth only on the basis of guess or conjunctures

as the whole truth would not come before it. It will be difficult

for the court to determine how the incident took place wherein

three persons died and so many persons including the

complainant and accused got injured. Not only the fair trial

but fair investigation is also part of constitutional rights

guaranteed under Articles 20 and 21 of the Constitution of

India. Therefore, investigation must be fair, transparent and

judicious as it is the minimum requirement of rule of law.

Investigating agency cannot be permitted to conduct an

investigation in tainted and biased manner. Where non-

interference of the court would ultimately result in failure of

justice, the court must interfere.

3

In such a situation, it may be in the interest of justice

that independent agency chosen by the High Court makes a

fresh investigation. Thus, the order of the High Court requires

modification to the extent that the charge sheets in both the

cases and any order consequent thereto stand quashed. In

case, any of the accused could not get bail because of the

pendency of these appeals before this Court, it shall be open to

him to apply for bail or any other relief before the appropriate

forum. In case, such an application is filed, we request the

appropriate court to decide the same expeditiously and in

accordance with law. It is further clarified that those persons

who were arrested in connection with CR No. I-155/08 would

not stand arrested in connection with CR No. I-154/08.

However, if during the fresh investigation, any incriminating

material against any person is discovered, the Investigating

Authority may proceed in accordance with law. It shall be

open to the accused to approach the appropriate forum for any

interim relief as per law.

3

35. In view of the above, the appeals are disposed of with the

modification of the order of the High Court to the extent

explained hereinabove.

…….....................J. (P. SATHASIVAM)

…… ….................J. (Dr. B.S. CHAUHAN)

New Delhi, August 26, 2010.

3

BABUBHAI Vs STATE OF GUJARAT .

BABUBHAI Vs STATE OF GUJARAT .