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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.