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CASE NO.: Appeal (crl.)  421 of 2004

PETITIONER: Hasanbhai Valibhai Qureshi       

RESPONDENT: State of Gujarat and Ors.        

DATE OF JUDGMENT: 05/04/2004

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT: J U D G M E N T

(Arising out of SLP(Crl.) No. 472/2004)

ARIJIT PASAYAT,J

       Leave granted.

       The appellant who is the original complainant in the  case relating to FIR NO. 134/2003 in the police station, Sub  District, Veraval, district Junagadh calls in question  legality of the judgment rendered by a learned Single Judge  of the Gujarat High Court, Ahmedabad dismissing the writ  petition filed by the appellant.  

       Main prayer in the writ petition was for issuance of  appropriate writ for re-investigation by an independent  agency. The prayer was made alleging that the local police  had succumbed to the pressure exercised by local MLA and the  investigation was not carried out in a straight forward  manner. It was alleged that on 23.9.2003 around 12.30 a.m.  persons belonging to a particular community carried deadly  weapons and combustible materials and pursuant to the common  object of an unlawful assembly caused destruction of shops  belonging to persons of another community, by breaking them  open and setting them ablaze. There was also large scale  looting of articles. About 53 persons were arrested.  Initially, in the FIR various offences including Sections  395 and 120B of the Indian Penal Code, 1860 (in short the  ’IPC’) and Section 135 of the Bombay Police Act were noted  and mentioned by the police officials. But strangely after a  few hours of the registration of the FIR wherein the  aforesaid offences were mentioned, Sections 395 and 120B  were deleted by the prosecuting agency and because of such  deletion the accused persons managed to get bail. The prayer  in the aforesaid circumstances was for investigation by an  independent investigating agency. It was brought to the  notice of the High Court that a bare perusal of the  statements clearly indicate the applicability of those  provisions and commission of such offences, contrary to what  has been stated by the prosecuting agency.

       The High Court noted that specific allegations were  made regarding the biased approach of the police officials   under the influence of local MLA. The petition was resisted  on the ground that on detailed investigation it was noticed

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that the offences relatable to Sections 395 and 120B IPC  were not made out and, therefore, were deleted. Such a  course is permissible in law. The High Court was of the view  that if further investigation is necessary the remedy is  available in the Code of Criminal Procedure, 1973 (in short  the ’Code’) and further investigation can be carried out  under the supervision of the trial Court. Moreover, it was  held the police was not the ultimate authority who can  decide as to which sections are applicable. Appropriate  steps can be taken by the complainant along with the  prosecuting agency before the trial Court.  Since such  remedy was available under the Code, the petition under  Article 226 of the Constitution of India, 1950 (in short the  ’Constitution’) was not entertained.  

       In support of the appeal, learned counsel for the  appellant submitted that the role of the prosecuting agency  from the beginning is tainted with suspicion and visible  leaning in favour of the accused persons. There was no  urgency to seek deletion of Sections 395 and 120B IPC  without full and complete investigation. It cannot be left  to the ipse dixit of the investigating officer. That the  complainant could approach the trial Court is no reason to  gloss over partisan approach and attitude of the prosecuting  agency, which was obliged to act independently and ensure  that the guilty are brought before Court for appropriate  offences though it is for the Court ultimately to find  whether they are guilty or not. The High Court has failed to  notice that the prosecuting agency was showing unusual  interest in protecting the accused persons and, therefore,  the scope of the complainant moving the trial Court along  with the prosecuting agency is a remote possibility. The  prosecuting agency in the circumstances cannot expected to  be reasonable or co-operate, fairly and just in order to  effectively enforce and maintain law and order.

       The respondents supported the judgment of the High  Court stating that no infirmity exists in the view taken by  the High Court to warrant interference.   

By order dated 19.3.2004 direction was given to the  Director General of Police, Gujarat to submit a report as to  whether the action taken by the investigating officer was  proper and whether there was need for further investigation.  In the report submitted by the Director General of Police,  it has been fairly accepted that the deletion of Section  120B IPC does not appear to be proper. In any event the  Court of Additional Sessions Judge of the 10th Fast-track  Court at Veraval has framed charge in Sessions Case  No.64/2003 on 22.3.2004 against three of the accused persons  under Section 120B IPC. It has been stated that though  retention of Section 120B IPC was desirable, but nothing  more is required to be done in view of the fact that the  Sessions Judge has already framed charge under the section.  It has been stated that there were few lapses in  investigation and inquiry is being caused against the  investigation officer with a view to initiate suitable  departmental action. So far as the desirability of further  investigation is concerned, it is stated that the case has  been fixed for day-to-day hearing from 5.4.2004 to 15.4.2004  and if further investigation is done, it would prove  infructuous and would only delay process of trial  unnecessarily.  

       Section 228 of the Code in Chapter XVII and Section 240

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in Chapter XIX deal with framing of the charge during trial  before a Court of Sessions and trial of Warrant -cases by  Magistrates respectively. There is a scope of alteration of  the charge during trial on the basis of materials brought on  record. Section 216 of the Code appearing in Chapter XVII  clearly stipulates that any court may alter or add to any  charge at any time before judgment is pronounced. Whenever  such alteration or addition is made the same is to be read  out and informed to the accused.  

       In Kantilal Chandulal Mehta v. State of Maharashtra  (AIR 1970 SC 359) it was held that the Code gives ample  power to the Courts to alter or amend a charge whether by  the Trial Court or by the Appellate Court provided that the  accused has not to face a charge for a new offence or is not  prejudiced either by keeping him in the dark about the  charge or in not giving him a full opportunity of meeting it  and putting forward any defence open to him on the charge  finally preferred against him. Section 217 deals with  recall, if necessary of witnesses when the charge is  altered.  

Therefore, if during trial the trial Court on a  consideration of broad probabilities of the case based upon  total effect of the evidence and documents produced is  satisfied that any addition or alteration of the charge is  necessary, it is free to do so, and there can be no legal  bar to appropriately act as the exigencies of the case  warrant or necessitate.    

       Coming to the question whether a further investigation  is warranted, the hands of the investigating agency or the  Court should not be tied down on the ground that further  investigation may delay the trial, as the ultimate object is  to arrive at the truth.  

       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.  All the more so, if as in this case, the Head of  the Police Department also was not satisfied of the  propriety or the manner and nature of investigation already  conducted.       

In Om Prakash Narang and Anr. v State (Delhi Admn.)  (AIR 1979 SC 1791) it was observed by this Court that  further investigation is not altogether ruled out merely  because cognizance has been taken by the Court. When  defective investigation comes to light during course of  trial, it may be cured by further investigation if  circumstances so permitted. It would ordinarily be desirable  and all the more so in this case, that police should inform  the Court and seek formal permission to make further  investigation when fresh facts come to light instead of  being silent over the matter keeping in view only the need  for an early trial since an effective trial for real or  actual offences found during course of proper investigation  is as much relevant, desirable and necessary as an  expeditious disposal of the mater by the Courts. In view of  the aforesaid position in law if there is necessity for  further investigation the same can certainly be done as  prescribed by law. The mere fact that there may be further  delay in concluding the trial should not stand on the way of

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further investigation if that would help the Court in  arriving at the truth and do real and substantial as well as  effective justice. We make it clear that we have not  expressed any final opinion on the merits of the case.  

The appeal is accordingly finally disposed of, on the  above terms.