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2022 (7) TMI 1457 - HC - Indian LawsUnsatisfactory investigation - prayer for constituting the Special Investigation Team to investigate the offences - HELD THAT - Hon'ble Supreme Court in the matter of W.N. Chadha 1992 (12) TMI 216 - SUPREME COURT in paragraph 92 has held that the accused has no right to have any say as regards the manner and method of investigation and also has no participation as a matter of right during the course of investigation of a case instituted on a police report till the investigation culminates in filing final report under Section 173(2) of the Code - In the matter of Arnab Ranjan Goswami 2020 (5) TMI 702 - SUPREME COURT , the Hon'ble Supreme Court has taken the view that the displeasure of an accused person about the manner in which the investigation proceeds or an unsubstantiated allegation of a conflict of interest against the police conducting the investigation must not delay the legitimate course of law and warrant the invocation of the extraordinary power of the Court to transfer the investigation to CBI. Hence, in view of the aforesaid judicial pronouncement, it is not open to the appellant to raise a complaint against the direction of the learned Single Judge to constitute the SIT specially when no prejudice is shown to have been caused to the appellant on account of such a direction. The investigation is apparently delayed in the present case and Hon'ble Supreme Court in the matter of DILAWAR VERSUS THE STATE OF HARYANA AND ORS. 2018 (5) TMI 2152 - SUPREME COURT has held that no investigating agency can take unduly long time in completing the investigation and that speedy investigation is recognized as a part of fundamental right of fair procedure under Article 21 of the Constitution. In the case of P.K. Palanisamy 2009 (7) TMI 1311 - SUPREME COURT well-settled principle of law has been reiterated and non-mentioning of a provision does not invalidate the order if the Court or statutory authority had a requisite jurisdiction therefor - In the present case there is no issue of invalidation of order passed by the Judicial Magistrate dated 06.05.2022. Even otherwise if the proceedings were taken up before the Judicial Magistrate under Section 156(3) of the Cr.P.C. that would not take away right of the respondent No. 1 to file a writ petition seeking investigation by SIT because such a power does not exist with the Judicial Magistrate. Thus, once the view taken by the learned Single Judge is found to be possible and proper view, then no case for interference is made out - there are no error in the order of the learned Single Judge and no ground for inference is made out - appeal dismissed.
Issues Involved:
1. Maintainability of the writ petition filed by the respondent. 2. Delay in the investigation by the police. 3. Formation of a Special Investigation Team (SIT). 4. Rights of the accused regarding the investigation process. 5. Powers of the Judicial Magistrate under Section 156(3) of the Cr.P.C. 6. Allegations of suppression of facts and procedural impropriety. Issue-wise Detailed Analysis: 1. Maintainability of the writ petition filed by the respondent: The appellant argued that the writ petition filed by the respondent was not maintainable because the respondent had already filed an application under Section 156(3) of the Cr.P.C. without disclosing this fact while invoking the writ jurisdiction. It was contended that the appropriate remedy for grievances related to improper investigation was to approach the Judicial Magistrate. However, the court noted that the Judicial Magistrate does not have the power to constitute an SIT, and the respondent's writ petition was maintainable for seeking such relief. 2. Delay in the investigation by the police: The court observed that the FIR was registered on 17.02.2021, but the investigation was not completed, and no charge sheet was filed even after 15 months. The appellant alleged that the delay was due to the respondent's failure to provide the password for a seized mobile phone promptly. However, the court found that the respondent provided the password within a reasonable time after being requested by the police, and the delay could not be attributed to the respondent. 3. Formation of a Special Investigation Team (SIT): The Single Judge had directed the formation of an SIT due to the slow and directionless investigation by the existing investigating officer, who lacked experience and adequate support. The court noted that the SIT was headed by the Special Commissioner of Police (II), Kolkata Police, and included the original investigating officer. The court highlighted that the accused has no right to choose the investigating agency, and the direction to form an SIT was justified given the gravity of the offenses and the delay in the investigation. 4. Rights of the accused regarding the investigation process: The court reiterated that the accused has no right to influence the manner and method of investigation. Citing precedents, the court emphasized that the accused cannot complain about the formation of an SIT or the investigation process unless there is a substantial prejudice caused to them. 5. Powers of the Judicial Magistrate under Section 156(3) of the Cr.P.C.: The appellant argued that the respondent had already sought relief under Section 156(3) of the Cr.P.C., and therefore, the writ petition was not maintainable. However, the court clarified that the Judicial Magistrate's powers under Section 156(3) are limited to directing further investigation and do not extend to constituting an SIT. The court found that the respondent's writ petition seeking the formation of an SIT was within the jurisdiction of the superior court. 6. Allegations of suppression of facts and procedural impropriety: The appellant alleged that the respondent suppressed the order of the Judicial Magistrate dated 06.05.2022 and that the counsel for the appellant were present during the hearing but did not mark their appearance. The court found that the order of the Judicial Magistrate was brought to the notice of the Single Judge, and the police report was taken on record. The court also noted that the allegation regarding the presence of the appellant's counsel was not substantiated by the record. The court emphasized that it could not question the judicial record and proceedings of the lower court. Conclusion: The court dismissed the appeal, finding no error in the order of the learned Single Judge. The court upheld the direction to form an SIT and emphasized that the accused has no right to influence the investigation process. The court also clarified the limited powers of the Judicial Magistrate under Section 156(3) of the Cr.P.C. and affirmed the maintainability of the respondent's writ petition. The court's decision ensures that the investigation proceeds efficiently and impartially, without undue delay.
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