2021 (10) TMI 1404 - HC - Indian Laws

Murder - Misuse of power by political parties and the Police authorities, to bury the truth in respect of an unnatural death of one Yogishgouda goudar - seeking sanction to the Central Bureau of Investigation (CBI), under Section - 6 of Delhi Special Police Establishment Act, 1946, to conduct further investigation with respect to Crime - Investigating Officer of the 2nd respondent/CBI is empowered to proceed with the investigation, in view of the interim order passed by the Hon'ble Supreme Court staying the operation of the order passed by the learned Single Judge of this Court, or not. HELD THAT - On careful perusal of the material documents including the objections filed by the respondents, it clearly depicts that the deceased Yogishgouda Goudar was a member of the Zilla Panchayat from Bharatiya Janatha Party ('BJP') and the accused, especially Accused No. 15 was in the congress party and there was a verbal altercation between the deceased and accused in the meeting held on 24.4.2015, thereby the Accused No. 15 and other accused have developed vengeance. Accordingly, after entering into conspiracy, on 15.6.2016 the deceased was killed near the Gym within the jurisdiction of Dharwad Sub-Urban Police Station and the Police registered the case for the offence punishable under the provisions of Section 302 of IPC in Crime No. 135/2016 against unknown persons. During the course of examination of the prosecution witnesses in SC 50/2017, mother and brother of the deceased approached the then Chief Minister with a representation requesting to refer the matter to CBI and the said representation was not fructified into action - Admittedly Accused No. 15 and other accused persons belong to Congress party as alleged by the respondents in the Statement of objections as well as in the submissions made by the learned counsel for the parties and the deceased Yogishgouda Goudar belong to BJP as alleged in the grounds of the present writ petition and as contended by the learned counsel for the petitioners/accused persons, which clearly indicates that the political parties are trying to settle the scores against each other taking the advantage of the judicial process. It is high time for the judiciary to protect the fundamental rights of the citizens of this country to ensure justice must not only be done but must be seen to be done and majesty of rule of law is to be upheld and it is to be ensured that guilty are punished in accordance with law notwithstanding their status and authority which they might have enjoyed. This Court being the protector of the civil liberties of the citizens, has not only power and jurisdiction but also an obligation to protect the fundamental rights guaranteed by part III in general and Article 21 of the Constitution in particular, zealously and vigilantly. It is relevant to consider at this stage whether the State Government is justified in entrusting the matter to the CBI in pursuance of the impugned Government Order dated 6.9.2019, in view of the representation made by the kith and kin of the deceased. A careful perusal of the records which culminated into passing of the impugned Government Order dated 6.9.2019 clearly indicates that the State Government was aware of the fact that the complainant had earlier approached this Court requesting to hand over the case to the CBI and this Court has dismissed the said writ petition. After considering the entire material on record, the State Government was of the opinion that the matter has to be entrusted to the CBI for further investigation, which is an independent authority and there is no bar for the State Government to exercise its sovereign power to entrust the matter to the CBI under Section 6 of the Delhi Special Police Establishment Act, 1946 for further investigation in Crime 135/2016 for the offence under section 302 IPC, in order to meet the ends of justice, Accordingly, the Central Government also issued notification on 23.9.2019 extending the powers and jurisdiction of the members of the Delhi Special Police Establishment in whole State of Karnataka for further investigation of Crime No. 135/2016 under Section 302 IPC lodged in Dharwad Sub-Urban Police Station, Dharwad. It is also not in dispute that the present writ petitions are filed challenging the validity of the Government Order dated 6.9.2019 entrusting the matter for further investigation to CBI and for quashing of FIR dated 24.9.2019. The learned Single Judge of this Court granted the interim order on 21.11.2019 staying all further proceedings pursuant to the Government Order dated 6.9.2019 and FIR dated 24.9.2019, till the next date of hearing and the said interim order was extended from time to time - the investigation was conducted and carried out by the CBI. After investigation, filed the supplementary charge sheet on 20.5.2020 adding Accused Nos. 7 to 14 in the array of accused and the cognisance was taken by the competent Court. Thereafter, another supplementary charge sheet was filed on 30.1.2021 adding Accused Nos. 15 to 17. Cognizance in respect of the said charge sheets were taken on 7.6.2021. Since Accused Nos. 19 and 20 are public servants, sanction to prosecute them has also been obtained by the CBI. In these writ petitions, none of the petitioners have challenged the charge sheets filed against the accused persons nor challenged the cognizance taken by the Court after applying its judicial mind. The material on record depicts that the Public Prosecutor, who was in-charge of the crime was changed during trial. The material also revealed that during the course of further investigation by CBI, it has come to light that some of the Police officials including previous Investigating Officer are also found to be involved in the case, were found to have taken gratification to scuttle the investigation and they have been arrayed as Accused Nos. 19 and 20 - The material on record clearly depicts that there are overt acts against the accused persons in the supplementary charge sheets and the competent Court took cognizance of the additional charge sheets. Therefore, the contention of the learned counsel for the petitioners that the investigation is defective, mala fide and there is no permission obtained from the Court, cannot be accepted and same is devoid of any merit. By careful perusal of the provisions of Section 173(8) of the Code of Criminal Procedure, it is clear that it does not prohibit the Police for conducting further investigation nor does it impinge on the power of the State Government to entrust the matter to CBI for further investigation under of Section - 6 of the Delhi Special Police Establishment Act, 1946. There are materials against the accused persons including Accused No. 15 - Vinay Kulkarni in the supplementary charge sheet filed after examining 88 witnesses and considering more than 75 documents and now, the learned Judge has taken cognizance and the matter is committed to the Court of Sessions and the matter is posted for further trial. It is not open to contend that the State has no jurisdiction to entrust the matter to CBI and there cannot be further investigation and once the trial commenced, there is no further investigation under the provisions of Section 173(8) of the Code of Criminal Procedure, cannot be accepted. In the present case, the allegations made in the first information report, prima facie constitute cognizable offence and make out a case against the accused persons. After investigation, the Investigating Officer of the 2nd respondent/CBI filed supplementary charge sheets and the competent Court took cognizance of the supplementary charge sheets and the matter is committed to the court of Sessions. The accused persons have not made out an express legal bar engrafted in any of the provisions of the Code to the institution and continuance of the proceedings in Crime No. 135/2016 - In the absence of any prejudice shown for continuation of the further investigation, it is not open for the petitioners/accused persons to seek for quashing the impugned Government Order dated 6.9.2019 and the FIR filed by the CBI, on the ground that the State Government has no power for entrusting the matter to CBI, that too after much water has flown under the bridge culminating into further investigation, recording the statements 88 witnesses, collection of more than 75 documents and filing of the supplementary charge sheets and taking cognizance by the competent Court etc. On that ground also the petitioners are not entitled for grant of any relief. The Government is justified in entrusting the matter to the CBI, an independent agency to conduct a fair trial and investigation. When there is an improper investigation by state police and high Police officials are involved, in order to do complete justice, direction for investigation by an independent and specialized agency like CBI, is warranted. The points raised in these writ petitions are answered as follows a) The 1st point raised in these writ petitions is answered in the negative holding that the petitioners - Accused Nos. 1, 5, 15, 16 and 21, in these writ petitions have not made out a case to quash the impugned Government Order bearing No. HD 48 PCB 2016, Bengaluru, dated 6.9.2019, by which sanction has been accorded to the Central Bureau of Investigation, under Section (6) of Delhi Special Police Establishment Act, 1946 for further investigation of Crime No. 135/2016 under Section 302 of IPC lodged in Dharwad Sub-Urban Police Station, Dharwad, and to quash the FIR dated 24.9.2019 made in Bangalore/CBI/ACB/BLR 2019 RC 17(S)/2019, by the Superintendent of Police, Central Bureau of Investigation, in the facts and circumstances of the present case. b) The 2nd point is answered in the affirmative holding that the Investigating Officer of the 2nd respondent/CBI is empowered to proceed with the investigation, in view of the interim order passed by the Hon'ble Supreme Court dated 20.2.2020 in SLP (Criminal) No. 1348/2020 (from 20.2.2020 to 11.8.2021) staying the operation of the order passed by the learned Single Judge of this Court dated 21.11.2019 made in W.P. No. 51012/2019, in the peculiar facts and circumstances of the present case. Petition dismissed.

Summary

Issues Involved:
1. Whether the petitioners made out a case to quash the impugned Government Order and the FIR.
2. Whether the Investigating Officer of the CBI is empowered to proceed with the investigation in view of the interim order passed by the Supreme Court.

Detailed Analysis:

Issue 1: Quashing the Government Order and FIR
The petitioners, who are accused in Crime No. 135/2016, challenged the Government Order dated 6.9.2019, which sanctioned the Central Bureau of Investigation (CBI) to conduct further investigation. The petitioners argued that the State Government had no authority to issue the order, especially since a previous writ petition requesting a CBI investigation was dismissed by the High Court and upheld by the Supreme Court. They contended that the order was politically motivated and amounted to re-investigation, which is impermissible under Section 173(8) of the Code of Criminal Procedure.

The Court examined the original records and noted that the State Government had acted on representations from the victim's family, who alleged improper investigation by local police officials. The Government, after consulting the Advocate General, concluded that further investigation was necessary to ensure justice. The CBI, after taking over the investigation, filed supplementary charge sheets, which the competent court took cognizance of.

The Court held that the State Government's decision to entrust the matter to the CBI for further investigation was within its powers under Section 6 of the Delhi Special Police Establishment Act, 1946. The Court emphasized that further investigation is permissible under Section 173(8) and that the Government Order was not for re-investigation but for further investigation. The Court found no merit in the petitioners' claims of prejudice or miscarriage of justice and dismissed the petitions.

Issue 2: Empowerment of CBI to Proceed with Investigation
The petitioners argued that the CBI could not proceed with the investigation due to the interim stay granted by the High Court. However, the Supreme Court, by its order dated 20.2.2020, stayed the High Court's interim order, allowing the CBI to continue its investigation. The CBI filed supplementary charge sheets during this period, and the competent court took cognizance of these charge sheets.

The Court held that the CBI was empowered to proceed with the investigation in view of the Supreme Court's interim order. The investigation conducted by the CBI, including the filing of supplementary charge sheets and the court's cognizance, was found to be valid and within the legal framework.

Conclusion:
The Court dismissed the writ petitions, holding that the petitioners failed to make out a case for quashing the Government Order and the FIR. The Court also confirmed that the CBI was empowered to proceed with the investigation based on the Supreme Court's interim order. The trial court was directed to expedite the trial without being influenced by the observations made in the judgment.