Supreme Court of India
BABUBHAIversusSTATE OF GUJARAT & ORS. ETC.
- Citation
- 2010 INSC 541
- Decided
- 26 August 2010
- Disposal
- Disposed off
- Bench
- P SATHASIVAM
Holding
The two FIRs pertained to the same transaction and the second FIR must be quashed; the investigation was biased, so the charge‑sheets are invalid and a fresh investigation by an independent agency under Section 173(8) CrPC is required.
Summary
Two FIRs (CR No.1‑154/2008 and CR No.1‑155/2008) were lodged for communal clashes in Dhedhal village. The High Court quashed the second FIR, merged the investigations, and transferred the case to the State CID, also directing that the charge‑sheet of the quashed FIR be read into the surviving case. The Supreme Court held that both FIRs described the same transaction and therefore the second FIR must be quashed. It further found the investigation to be biased and vitiated, rendering the charge‑sheets invalid; consequently the Court modified the High Court order, quashing the charge‑sheets and ordering a fresh investigation by an independent agency under Section 173(8) CrPC. The appeals were disposed of with this modification.
Issues considered
- Whether two FIRs relating to the same incident can be clubbed and the second FIR quashed under Section 154 CrPC.
- Whether the investigation conducted by the police was fair and impartial, invoking Articles 20 and 21 of the Constitution.
- Whether a charge‑sheet filed after a vitiated investigation can be read into another case.
- Whether the High Court’s directions to transfer investigation and read charge‑sheets are permissible under Sections 173(2) and 173(8) CrPC.
Legislation cited
- Bombay Police Act, 1951s. 135
- Code of Criminal Procedure, 1973s. 154, s. 162, s. 169, s. 170, s. 173(2), s. 173(8), s. 482
- Indian Penal Code, 1860s. 147, s. 148, s. 149, s. 302, s. 307, s. 332, s. 333, s. 427, s. 436
- Prevention of Damage to Public Property Act, 1984s. 3, s. 7
Subjects
FIRinvestigationfair trialArticles 20 and 21Section 173(8) CrPCcharge sheetquashing FIRindependent agencybiascriminal procedure
Judgment
[201 OJ 10 S.C.R. 651
BABUBHAI A
V.
STATE OF GUJARAT & ORS. ETC.
(Criminal Appeal No. 1599 of 2010)
AUGUST 26, 2010
B
[P. SATHASIVAM AND DR. B.S. CHAUHAN, JJ.]
FIR - Two FIRs - Investigation into - Permissibility -
Held: If the court finds that both the FIRs relate to the same
incident, second FIR is liable to be cancelled - But if both C
the FIRs are in respect of different incidents, investigation in
both the FIRs has to be conducted - On facts, the two FIRs
pertained to the same transaction - High Court rightly
quashed the second FIR - Code of Criminal Procedure, 1973
- s. 154. D
Investigation - Two FIRs lodged - High Court quashing
one of the FIRs and finding that investigation was biased and
unfair, directed investigation info the surviving FIR by
independent agency - High Court also directed the charges
E
in the quashed FIR to be read in the surviving case -
Propriety of High Court order - Held: If investigation is held
to be unfair, such vitiated investigation cannot give rise to a
valid charge-sheet - Thus, charge-sheets filed in both the
cases became inconsequential - If the court finds the
investigation to be unfair, the court can direct only further F
investigation and not re-investigation - The power of the court
to interfere with investigation and direct further investigation
is limited and can be exercised only in exceptional
circumstances - Direction issued to the independent
investigating agency, chosen by the High Court, to make fresh G
investigation - Charge-sheets in both the cases and any
order consequent thereto, quashed - Code of Criminal
Procedure, 1973 - s. 173(8).
651 H
652 SUPREME COURT REPORTS
A Constitution of India, 1950 - Articles 20 and 21 - Fair
investigation - Held: Is part of the constitutional rights
guaranteed under Articles 20 and 21 - Investigation.
In a criminal case two FIRs were lodged which were
registered as CR No.1-154/2008 and CR No.1-155/2008,
8
respectively. The accused in both the cases filed Special
Criminal Application, seeking investigation of CR No. 1-
154/2008 by an independent agency. They also filed
Special Criminal Application for quashing both the
C criminal cases. The High Court quashed the FIR
registered as CR No.1-155/2008 and clubbed the
investigation of the FIR alongwith the investigation of the
other FIR bearing CR No.1-154/2008. The High Court
transferred the investigation to the State CID, Crime
Branch, directing investigation of the case in CR No.1-154/
D 2008. The High Court further clarified that quashing of FIR
bearing CR No.1-15512008 did not mean that the accused
in the said FIR were discharged, but they would face
charges in CR No.1-154/2008 and the accused who stood
arrested in connection with CR No.1-155/2008 would
E stand arrested in connection with case CR.No.1-154/2008.
Therefore, the instant appeals were filed by the
complainant as well as the State.
The Appellant/complainant and the State inter-alia
F contended that the FIRs could not be clubbed as there
were two separate incidents at two different places and
for distinct offences.
Disposing of the appeals, the Court
G HELD: 1.1 An FIR u/s. 154 Cr.P.C. is a very important
document. It sets the machinery of criminal law in motion
and marks the commencement of the investigation which
ends with the formation of an opinion u/s. 169 or 170
Cr.P.C. as the case may be, and forwarding of a police
H report uls. 173 Cr.P.C. Thus, it is quite possible that more
BABUBHAI v. STATE OF GUJARAT & ORS. ETC. 653
than one piece of information be given to the Police A
Officer incharge 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. All other information given
orally or in writing after the commencement of the B
investigation into the facts mentioned in the FIR will be
statements falling u/s. 162 Cr.P;C. [Para 17] [668-E-H]
1.2 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 C
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 in the affirmative, the second FIR is liable to be
quashed. However, in case, the contrary is proved, where D
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 E
has to be conducted. [Para 17] (669-A~C]
1.3 In the instant case, if both the FIRs are compared,
there is no doubt that both the incidents had occurred
at the same place in close proximity of time, therefore, F
they are two parts of the same transaction. More so, the
death of 'A' was 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 'A' had not occurred during the course of the incident G
in connection with which C.R. No.1-154 of 2008 came to
be registered. 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-
H
654 SUPREME COURT REPORTS [2010] 10 S.C.R.
A 155/08 occurred at a different place. Thus, High Court
reached the correct conclusion and the second FIR
C.R.No. 1-155/2008 was liable to be quashed. [Paras 18,
19 and 20) [670-A-H]
8
Ram Lal Narang vs. Om Prakash Narang and Anr. AIR
1979 SC 1791; T. T. Antony vs. State of Kera/a and Ors.
(2001) 6 SCC 181; Upkar Singh vs. Ved Prakash and Ors.
(2004) 13 SCC 292; Rameshchandra Nandla/ Parikh vs.
State of Gujarat and Anr. (2006) 1 SCC 732; Nirmal Singh
C Kah/on vs. State of Punjab and Ors. (2009) 1 SCC 441 -
relied on.
2.1 Not only the fair trial but fair investigation is also
part of the constitutional rights guaranteed under Articles
20 and 21 of the Constitution of India. Therefore,
D 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
E co.urt must interfere. [Par:a 34) [679-8-C]
2.2 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 the investigation was unfair and carried out
F with an ulterio·r 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 of fabrication
G of evidence, and his impartial co.nduct 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". [Para 25)
H [675-8-D]
BABUBHAI v, STATE OF GUJARAT & ORS. ETC.. 655
R.P. Kapur vs. State of Punjab AIR 1960 SC 866; A
Jamuna Chaudharyand Ors. vs. State of Bihar AIR 1974 SC
1822; Mahmood vs. State of UP. AIR 1976 SC 69; State of
Bihar vs. P.P. Sharma AIR 1991 SC 1260; Navinchandra N.
Majithia vs. State of Megha/aya and Ors. AIR 2000 SC 3275;
K. Chandrasekhar vs. State of Kera/a and Ors. (1998) 5 SCC B
223; Ramachandran vs. R. Udhayakumar and Ors. (2008) 5
SCC 413; Nirmal Singh Kah/on vs. State of Punjab and Ors.
(2009) 1 SCC 441; Mithabhai Pashabha! Patel and Ors. vs.
State of Gujarat (2009) 6 SCC 332; Kishan. Lal vs.
Dharmendra Bafna (2009) 7 SCC 685 - relied on. C
2.3 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 u/s. 173(8) Cr.P.C, ·eyen transferring the
investigation to an indepen·dent agency, r.ather than D
directing a re-investigation. "Direction of a re-
investigation, however, being forbidden in law, no
superior court would ordinarily issue such a direction."
Unless an extra-ordinary case of gross abuse of power
by those in charge of the investigation is made out, the E
court 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 ma/a fide exercise of
power by a police officer, the court may interfere. The
scheme of investigation, particularly; Section 173(8) F
Cr.P.C. provides for further investigation and not for 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- G
investigation. (Paras 30, 31 _and 33] [678~0-G; 679~8]
S. N. Sharma vs. Bipen Kumar Tiwari and Ors. AIR 1970
SC 786;Kashmeri Devi vs. Delhi Administration and Anr. AIR
1988 SC 1323; Kashmeri Devi v. Delhi Administration and
Anr. AIR 1988 SC 32 - relied on. . H
656 SUPREME COURT REPORTS [2010] 10 S.C.R.
A 2.4 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'.
Thus, in exceptional circumstances, the court in order to
B prevent the miscarriage of criminal justice, if considers
necessary, it may direct for investigation de novo. [Para
33] [679-D-E]
Kai/ash Chandra vs. Union of India AIR 1961 SC 1346;
Eicher Tractors Ltd., Haryana vs. Commissioner of Customs,
C Bombay AIR 2001 SC 196; State of A.P. vs. Sarma Rao and
Ors. AIR 2007 SC 137 - relied on.
2.5 In the instant case, the investigation in respect of
. both the FIRs has not been fair and has caused serious
D prejudice .to one party. That apart, even before the High
Court, the conduct of the party and investigating agency
has not been fair. If the High Court has quashed the FIR
in C.R.No. 1-155/2008, the charge-sheet, which was filed
after investigation of allegations made therein, could not
E survive and could not be directed to be read in another
case nor could other consequential orders be 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
F vitiated and as a consequence thereof, charge-sheets
filed in both the cases could have become
inconsequential. [Paras 21 and 24] [673-G-H; 674-G]
Nirmal Singh Kah/on vs. State of Punjab and Ors. (2009)
1 SCC 441; Manu Sharma vs. State (NCT of Delhi) (2010)
G 6 sec 1 - relied on.
2.6 A charge sheet is the outcome of an investigation.
If the investigation has not been conducted fairly, such
vitiated investigation cannot give rise to a valid charge-
H
BABUBHAI v. STATE OF GUJARAT & ORS. ETC. 657
sheet. Such investigation would ultimately prove to be A.
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. In the instant case, the High
Court has given detailed reasons for coming to the B
conclusion that the investigation has been totally one-
sided, biased and ma/a 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 c
has been prejudiced. The charge-sheets filed by the
investigating agency in both the cases are against the
same set of accused. It will be difficult for the court to
determine how the incident took place wherein three
persons died and so many persons including the D,
complainant and accused got injured. [Para 34) [679-F-
H; 680-A-B]
2.7 Thus, 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 E
requires modification to the extent that the charge-sheets
in both the cases and any ,rder consequent thereto
stand quashed. In case, any of the accused could not get
bail because of the pendency of the instant appeals
before this .Court, it shall be open to him to apply for bail F
or any other relief before the appropriate forum. In case,
such an application is filed, the appropriate court is
directed to decide the same, expeditiously and in
accordance with law. [Para 34) [680-D-E]
G
2.8 It is further clarified that those persons who were
arrested in connection with CR No. 1-155/08 would not
stand arrested in connection with CR No. 1-154/08.
However, if during the fresh investigation, any
incriminating material against any person is discovered,
H
658 SUPREME COURT REPORTS [2010] 10 S.C.R.
A 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. (Para
34] [680-F-G]
Case Law Reference:
B
AIR 1979 SC 1791 Relied on. Para 12
(2001) 6 sec 181 Relied on. Para 13
(2004) 13 sec 292 Relied on. Para 14
c
(2006) 1 sec 132 Relied on. Para 15
(2009) 1 sec 441 Relied on. Para 16,
28 and 30
D AIR 1960 SC 866 Relied on. Para 25
AIR 1974 SC 1822 Relied on. Para 25
1976 SC 69 Relied on. Para 25
AIR 1991 SC 1260 R(!lied on. Para 25
E
AIR 2000 SC 3275 Relied on. Para 27
t2010) 6 sec 1 Relied on. Para 29
(1998) s sec 223 Relied on. Para 30
F (2008} 5 sec 413 Relied on. Para 30
(2009) 6 sec 332 Relied on. Para 30
(2009) 1 sec 685 Relied on. Para 30
G AIR 1970 SC 786 Relied on. Para 31
AIR 1988 SC 1323 Relied on. Para 32
AIR 1961 SC 1346 Relied on. Para 33
AIR 2001 SC 196 Relied on. Para 33
H
BABUBHAI v. STATE OF GUJARAT & ORS. ETC. 659
AIR 2007 SC 137 Relied on. Para 33 A
Criminal APPELLATE JURISDICTION : Criminal Appeal
No. 1599 of 2010.
From the Judgment and order 22.12.2009 of the High
Court of Gujarat at Ahmadabad in Criminal Misc. Application B
No. 8249 of 2009.
WITH
Criminal Appeal No. 1600-1605 of 2010.
c
U.U. Lalit, P.S. Narsimha, R.K. Abichandani, C.A.
Sundram, Tushar Mehta, AAG. Ankur Chawla, Rahul Pratap,
Jayant Mohan (for COAC), Vimal Chandra S. Dave, Laxmi
Abichandani, Sunil Patel, Hemantika Wahi, Meensha
Lovkumar, Nupur, Sushil Kumar Jain, Puneet Jain, Rohini Musa, D
Abhishek Gupta, Zafar I., Anandh Kannan, P.K. Dey, Anirudh
Sharma, A.K. Sharma, V.K. Biju, D.R. Bhatt, D.K. Garg, Keshav
C. Thakur for the appearing parties.
The Judgment of the Court was delivered by E
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 Ahmadabad, passed in Special F
Criminal Application Nos. 1675/2008, 1679/2008 with Crl.
Misc. ApplicatLon Nos. 8249/2009, 8361/2009, 8363/2009 and
7687/2009.
3. Facts and circumstances giving rise to the present G
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. Ahmadabad, Gujarat. The
Bharwad community had been preventing the Koli Patels from
H
660 SUPREME COURT REPORTS. [2010] 10 S.C.R.
A running their rickshaws in the said area.
On the next day, i.e. on 8.7.2008, case No. C.R.No.1-154/
2008, was registered at 17:30 hours in the Bavla Police Station
under Sections 147, 148, 149, 302, 307, 332, 333, 436 and
B 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 incident
which occurred at Village Dhedhal, wherein Mr. M.N. Pandya,
C 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
D 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
E 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
F 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 person, namely Ajitbhai
Prahladbhai, also died. Several police personnel were also
injured. No person was named in the said FIR.
G
4. Another FIR, being Case No. C.R.No. 1-155 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
H
BABUBHAI v. STATE OF GUJARAT & ORS. ETC. 661
[DR. B.S. CHAUHAN, J.]
complainant), resident of village Vasna, Taluka Bavla, wherein A
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 B
two rickshaw-walas were taking passengers at Dhedhal Chokdi,
the Bharwads of Dhedhal village who were also plying
rickshaws, chhakdas etc. told the Keli Patels not to take
passengers from there and they took away the keys of the jeep,
beat up the Keli Patel boys, abused and threatened them and c
told them not to bring jeeps and rickshaws to Dhedhal Chokdi.
Babubhai Popatbhai Keli Patel, complainant reached Dhedhal
Chokdi and met Budhabhai Laljibhai Keli Patel of his village
and his brother Jayantibhai Laljibhai and enquired about the
incident. They complained about browbeating and threatening 0
by th.e 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 E
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 F
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 persons to indulge in violence. G
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 Vadibh~i Pakhabhai and Amubhai H
662 SUPREME COURT REPORTS (2010] 10 S.C.R
A 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
B 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 yillage
c had also arrived.
5. The Bharwads started beating passersby on vehicles,
who had worn clothes like Kali Patels and causing injuries to
them. The Bharwads made calls on mobile phones to call other
Bharwads. The Bharwads assaulted and killed Manubhai Kali
D Patel and Ajitbhai Prahladbhai Kali Patel by assaulting them
with deadly weapons like revolver, dhariyas and sticks and also
caused serious injuries to Babubhai Popatbhai Kali Patel,
informant/complainant on his head and hand. They also caused ·
minor and major injuries to other persons.
E
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
F 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
G 21.7.2008.
7. The accused in both the cases filed Special Criminal
Application No. 1675/2008 praying for investigation of CR No.1-
154/2008 registered with Bavla Police Station by an
independent agency like the CBI, Special Criminal Application
H No. 1679/2008 for quashing of C.R. No.1-154/2008 and C.R.
BABUBHAI v. STATE OF GUJARAT & ORS. ETC. 663
[DR. B.S. CHAUHAN, J.]
No.1-155/2008 registered with Bavla Police Station. Three A
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 B
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.1-155/2008 and
clubbed the investigation of the FIR along with the investigation C
of the other FIR bearing CR No.1-154/2008 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.1-154/2008 as it
stood earlier prior to the deletion of Section 302 IPC with a D
further clarification that quashing of the FIR registered by Bavla
Police Station i.e. C.R.No.1-155 of 2008 could not mean that
accused in respect of the said Fl R has been discharged of the
offences as they would face the charges in C.R. No.1-154/2008
and the accused who stood arrested in connection with E
C.R.No.1-155 of 2008 would stand arrested in connection with
case C.R. No.1-154/2008. Hence, these appeals.
9. Shri R.K. Abichandani, learned senior counsel
appearing for the appellanUcomplainant in C.R. No.1-155/2008, F
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 G
recorded in CR No. 1-155/08 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. 1-155/08, three persons belonging
to Koli Patel community had died and 26 persons of the same
H
664 SUPREME COURT REPORTS [2010] 10 S.C.R.
'
A community were injured at the hands of Bharwads, whereas no
person from the Bharwad community suffered any injury. Both
the FIRs had been lodged specifying that the FIR in CR No.1-
155/08 has been in respect of the incident occurred at 9.15 am
while the incident involved in CR No. 1-154/08 has been in
B 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
C 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
D counsel appearing for the respondents-accused in C.R. No.1-
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
E in C.R. No.1-155/2008 cannot be considered a counter 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
F learned counsel for the parties and perused the record.
Two FIRs.
12. In Ram Lal Narang Vs. Om Prakash Narang & Anr. _
Al R 1979 SC 1791, this Court considered a case wherein two
G 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 Fl Rs and the object of conspiracy in both the cases
was not the same. This Court while considering the question
H as to whether investigation and further proceedings on the basis
BABUBHAI v. STATE OF GUJARAT & ORS. ETC. 665
[DR. S.S. CHAUHAN, J.]
of both the FIRs was permissible held that no straitjacket A
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 both
conspiracies were not identical. Therefore, lodging of two FIRs B
was held to be permissible.
13. In T. T. Antony Vs. State of Kera/a & 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 C
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 D
in the Police Station diary by the Officer In-charge under
Section 158 of the Code of Criminal Procedure, 1.973
(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 E
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
Section 173 Cr.P.C. Even after submission of the report under F
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 G
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
H
666 SUPREME COURT REPORTS [2010] 10 S.C.R.
A 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
c 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
same incident, giving rise to one or more cognizable
offences, consequent upon filing of successive FIRs
D 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
E 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
F 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 2261227 of the
Constitution." (Emphasis added).
G 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
H
BABUBHAI v. STATE OF GUJARAT & ORS. ETC. 667
[DR. B.S. CHAUHAN, J.]
complaint by the· same complainant against the same accused, A
subsequent to the registration of a case, is prohibited under
the Cr.P.C. because an investigation in this regard 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 B
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 c
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 Nandlaf Parikh Vs. State of D
Gujarat & Anr. (2006) 1 sec 732, this Court reconsidered the
earlier judgment including T. T. Antony (supra) and held that in
case the Fl Rs 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 E
course of the same transaction or the same occurrence as the
one alleged in the First FIR, there is no prohibition in accepting
the second FIR.
16. In Nirmal Singh Kah/on Vs. State of Punjab & Ors. F
(2009) 1 sec 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
G
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
H
668 SUPREME COURT REPORTS [2010] 10 S.C.R.
A 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
B
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 subsequent
stage. Discovery about a larger conspiracy can also
surface in another proceeding, as for example, in a case
c 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 irtvestigation, 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
D 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
E 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
F 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
G involving one or more than one cognizable offences. In such a
case, he need not enter each piece of information in the Diary.
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.
H
BABUBHAI v. STATE OF GUJARAT & ORS. ETC. 669
[DR. B.S. CHAUHAN, J.]
In such a case the court has to examine the facts and A
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 B
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 C
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 Fl Rs are
read together, it becomes clear that the incident started in the D
morning as per both the FIRs. C.R. No.1-154/2008, lodged by
Mr. M.N. Paridya, 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 E
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 F
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 G
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 irside their
houses and they had also put their houses at fire. The superior
H
670 SUPREME COURT REPORTS [2010] 10 S.C.R.
A officers also came there. Police has used force to 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.1-155/2008, the incident also occurred near the pond
in the village Dhedhal. The damaged tractor, motor cycle and
8 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
C 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.1-154 of 2008 came to be registered.
D
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 scene of offence drawn in C.R. No.1-155 of 2008 as well
E 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. 1-154/2008. Panchnama of the
scene of incident of C.R. No.1-154/2008 includes the scene of
occurrence of C.R. No.1-155/2008 which makes it clear that both
F 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.1-155/08 occurred at Dhedhal Chokdi
G (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. 1-155/2008 was liable to be quashed.
H
BABUBHAI v. STATE OF GUJARAT & ORS. ETC. 671
[DR. B.s: CHAUHAN, J.]
Tainted Investigation A
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 material 8
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 C
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 o
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; E
(iii) In CR No.l-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 F
would certainly go scot~free, which clearly indicates the
nature of investigation which has been carried out in
respect of one of the Fl Rs; ·
(iv) Not a single witness named in the charge sheet G
belongs to the Bharwad community and despite the 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 ori record
by the prosecution, not a single person belonging to the H
672 SUPREME COURT REPORTS [2010] 10 S.C.R.
A 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
B 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. 1-154 of 2008;
(vi) When in respect of the second FIR pertaining to the
alleged first incident, the informant was in a position to
c 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
D 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 belonging to one
E
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
F 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;
G
(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;
H
BABUBHAI v. STATE OF GUJARAT & ORS. ETC. 673
[DR. S.S. CHAUHAN, J.]
(ix) There is over-action in relation to one FIR and complete A
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 B
to face the prosecution;
(x) In such a fact-situation, persons who would otherwise
be co-accused, would be witness against them in the case
arising out of the another FIR which would cause immense
prejudice to them;
c '
'·
(xi) Deletion of offence under section 302 IPC from the FIR
CR No.1-154/2008 was totally unwarranted; and
(xii) Charge-sheet against same set of 12 persons had 0
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.
E
On appreciation/consideration of the material available on
record, the High Court recordec :he aforesaid findings of fact
and came to the following conclusion:
"The manner in which the investigation has been carried F
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."
G
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
conduct of the party and investigating agency has not been fair.
22. None of the learned counsel appearing for the parties H
674 SUPREME COURT REPORTS [2010] 10 S.C.R.
A 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
B 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 1-C.R. No.154 of 2008
is transferred to the State CID Crime Branch. Both the
C Investigating Officers of the aforesaid Fl Rs 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 1-C.R. No.154 of 2008 as it stood earlier
D 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 1-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
E the said charges in the first information report registered
vide Bavla Police Station 1-C.R. No.154 of 2008. The
accused who are arrested in connection with Bavla Police
Station 1-C.R. No.155 of 2008 shall stand arrested in
connection with Bavla Police Station 1-C.R. No.154 of
F 2008."
24. We fail to understand that if the High Court has
quashed the·FlR in C.R.No. 1-155/2008, 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
G 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
H
BABUBHAI v. STATE OF GUJARAT & ORS. ETC. 6T5
[DR. B.S. CHAUHAN, J.]
cons~quence thereof charge sheets filed in both the cases A
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 B
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 of fabrication of evidence and C
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 D
1822; and Mahmood Vs. State of UP. AIR 1976 SC 69).
26. In State of Bihar Vs. P.P. Sharma AIR 1991 SC 1260,
this Court has held as under:
E
"Investigation is a delicate painstaking and dextrous
process. Ethical conduct is absolutely essential for
investigative professiona11;;m. .. .. Therefore, before
countenancing such allegations of ma/a tides or bias it
is salutary and an onerous duty and responsibility of the
court, not only to insist upon making specific and definite F
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 G
act intentionally without any just cause or excuse or
without there fJeiffg' 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
H
676 SUPREME COURT REPORTS (2010] 10 S.C.R.
A amplitude 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
B 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
c ma/a fides."
27. In Navinchandra N. Majithia Vs. State of Megha/aya
& 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.
D 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
E 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
investigated at his own risk and cost. But such an investigation
cannot be treated as investigation made under law, nor can the
F 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
G 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
H
BABUBHAI v. STATE OF GUJARAT & ORS. ETC. 677
[DR. B.S. CHAUHAN, J.]
the complaint. ... .A vitiated investigation is the precursor A ·
for miscarriage of criminal justice."
(Emphasis added)
28. In Nirmal Singh Kah/on (supra), this Court held that a
concept of fair investigation and fair trial are concomitant to B
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 C
dealt with the requirement of fair investigation observing as
under:-
" ...... The criminal justice administration system in India
places human rights and dignity for human life at a much
D
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 triai and the prosecution is expected to play balanced
role in the trial of a crime. The investigation should be
judicious, fair, transparent and expeditious f'O ensure E
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 .... F
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 G
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
H
678 SUPREME COURT REPORTS [2010] 10 S.C.R.
A 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 ....
B 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 ..... ".
c 30. This Court in K. Chandrasekhar Vs. State of Kera/a
& Ors. ( 1998) 5 SCC 223; Ramachandran Vs: -R..
Udhayakumar & Ors. (2008) 5 SCC 413; and Nirmal Singh
Kah/on (supra); Mithabhai Pashabhai Patel & Ors. Vs. State
of Gujarat (2009) 6 SCC 332; and Kishan Lal Vs. Dharmendra
D 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
E 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
F should be quite loathe to interfere with the investigation, a field
of activity reserved for the police and the exe.cutive. 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).
G
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
H the· help of an independent agency for the ends of justice so
BABUBHAI v. STATE OF GUJARAT & ORS. ETC. 679
[DR. B.S. CHAUHAN, J.]
that real truth may be revealed. In the said case, this court A
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)
B
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.
c
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
I
circumstances". (vide: Kai/ash Chandra
.
Vs. Union
of India AIR 1961 SC 1346; Eicher Tractors Ltd., Haryana Vs. D
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 E
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
d.etailed reasons for coming to the conclusion that the
investigation has been totally one-sided, biased and mal~ fide. F
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 same G
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 H
680 SUPREME COURT REPORTS (2010] 10 S.C.R.
A 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
B 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
C an investigation in tainted and biased manner. Where non-
interference of the court would ultimately result in failure of
justice, the court must interfere. ..
In such a situation, it may be in the interest of justice tha~
independent agency chosen by the High Court makes a fresti
D 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
E 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. 1-155/08 would not
F stand. arrested in connection with CR No. 1-154/08. tl.1owever,
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
G as per law.
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.
H K.K.T Appeals disposed of.
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