Shashi Shekhar Dwivedi v. The State of Bihar

line of first paragraph of the fardbeyan, as quoted above, shall not be treated as part of the fardbeyan and shall not form part of the first information report also. The investigation of case will now proceed without that line and only on the basis of rest of statement in the fardbeyan, in accordance with law.” And as regard to relief – A, some direction and observation were also made in said order wherein it 4 is also mentioned as regard to relief – D that the authorities have already proceeded against respondent no. 7 and it was further observed: “It is expected that the said proceeding against respondent no. 7 will be held expeditiously and final result of the said proceeding shall also be intimated to this Court by the next date.”

4. Subsequently by filing a interlocutory application no. 571/2010 it was intimated respondent no. 7 is still continuing at same police station and interfering in investigation direction was sought apart from others initiate a suitable proceeding against him. Taking into consideration the submissions and materials available said interlocutory application was also disposed of vide order no. 7 dated

05.04.2010 and the then D.I.G., authorized for overall supervision, was expected to do all the needfuls consequently no other direction was required or given.

5. By filing another interlocutory application no. 2048/2010, further direction was sought to entrust supervision and control of investigation another senior police official since the then D.I.G. had 5 been transferred and vide order dated 12.10.2010 said Interlocutory application was disposed of with observation. Relevant portion stated below: - “The informant stated in the First Information Report that on 09.11.2009 at 9.00 A.M., he got telephonic information that his son, Ravi Shankar Dwivedi, met with car accident in area falling within Jagdishpur police station in the District of Bhojpur. His son had informed him, the previous might that he would be leaving for Gaya with two to four people on 09.11.2009 at 5.00 A.M. The informant, who reached the place of accident in mysterious circumstances. No money was found in the car, though he was carrying enough money. The dickey (Boot) of the car was closed. The informant stated that his son was going to Gaya for his campaign, as he was a candidate in the forthcoming Bar Council Election. He states that strangely enough, in the First Information Report one line was subsequently added towards end stating that the occurrence took place on account of carelessness in driving. After taking into consideration, the facts and circumstances of the case, as well as the fact that the informant is a Senior Counsel 6 of this Court, this Court by order dated

18.02.2010 directed that aforesaid line namely (YEH GHATNA TEJI WO LAPARWAHI SE GARI CHALANE KE KARAN GHATIT HUI HAI) would not form part of the First Information Report. This court finding that C.B.I. is over worked with investigation of a large number of cases, directed the Director General of Police, Bihar, Patna to hand over all supervision and investigation either to Ms. Anupama Nilekar or Mr. Arvind Pandey, both in the rank of D.I.G.”

6. Supplementary counter affidavit has been filed by State and supplementary affidavit has also been filed by the petitioner admitting the fact that investigation is over, final form has already been submitted, and the same is still pending consideration by the court below.

7. It is contended that whatever introduced by interpolation in the fardbeyan making death of petitioner’s son in a accident of car due to his own negligence and reckless driving is ultimate outcome of the investigation which is contrary to the actual state of affairs. No proper investigation has been done to ascertain truth and actual happenings. 7

8. Attention of this court was also drawn towards contents of the fardbeyan (Annexure – 1) “Fardbeyan of Sri Shashi Sekhar Dwivedi aged about 69 years, S/o Late Sheo Kumar Dwivedi of village 18 Sardar Patel Path North S.K. Puri, Patna, P.S. Krishnapuri District – Patna, recorded by S.I. Narendra Kumar of Jagdishpur Dist, Bhojpur on 09.11.09 dt. 12.30 hrs. at NH30 near Daya Ram Pokhra. gekjk uke Jh 'kf’k 'ks[kj f}osnh mez 69 o"kZ firk Lo0 f’ko dqekj f}osnh lk0 18 ljnkj iVsy iFk mRrjh ,l0ds0 iqjh iVuk Fkkuk d‘".kkiqjh iVuk gSA ge vkt fnukad 9-11-09 dks 12-30 cts fnu esa vkjk txnh’kiqj Fkkuk ds njksxk th lkgc ds le{k ,u0,p0 30 iDdh lM+d ij LosPNk ls O;ku nsrk gw ¡ fd vkt fnukad 9-11-09 dks djhc 5-00 cts lqcg esa esjk iq= …e‘rd‰ jfo ’kadj f}osnh vius ?kj ls dkj ua0 DL-4/C NB 2381 ls iVuk ls x;k ds fy, pys FksA jk=h esa [kkuk [kkus ds le; esjk yM+dk jfo’kadj f}osnh cksys Fks fd eSa dy nks pkj vkneh ds lkFk x;k tk¯¡xkA vkt fnukad 9-11-09 dks djhc 4-00 cts fnu esa VsfyQksu ls gesa lwpuk feyh fd vkidk yM+dk jfo’kadj f}osnh dk Hkkstiqj ftykUrxZr txnh’kiqj Fkkuk {ks= esa eksVj nq?kZVuk gks xbZ gSA bl lwpuk ij eSa rFkk vius ’kkyk misUnz dqekj f}osnh ds lkFk iVuk ls pys rFkk 12-30 cts ?kVuk LFky ij igq¡ps rks ns[kk fd esjk csVk e`rd jfo’kadj f}osnh dk mDr dkj jksM ds nf{k.k pkVZ esa mrj xbZ gS rFkk ,d isM+ ls Vdjk xbZ gSA ,slk izrhr gksrk gS fd pksV yxus ls esjs yM+ds dh e‘R;q gks xbZ gSA vHkh eq>s ekywe ugha gS fd esjs yM+ds jfo ’kadj f}osnh ds lkFk dkSu&dkSu pys FksA irk yxkus ds ckn crk,xsA ;gk¡ vkus ij irk pyk fd muds ikl ls #i;k iSlk ugha feyk gSA ;|fi ?kj ls dkQh #i;k iSlk ysdj pys FksA orZeku esa nq?kZVukxzLr xkM+h dk fMDdh can gSA ;g ?kVuk rsth oks ykijokgh ls xkM+h pykus ds dkj.k ?kfVr gqbZ gSA (controversial portion underlined by me has already been deleted vide earlier order dated 18.02.2010) 8 ;gh gekjk O;ku gS eSa viuk O;ku i<+ oks i<+okdj lqu oks le> fy;kA lgh fy[kk ikdj vius ’kkyk misUnz f}osnh ds le{k viuk gLrk{kj cuk fn;k A

9. Learned counsel representing the petitioner by placing reliance upon decision of Apex Court in State of West Bengal and Ors. Vs. Committee for Protection of Democratic Rights, West Bengal and Ors. reported in AIR 2010 SC 1476 = (2010)3 SCC 571; Rubabbuddin Sheikh Vs. State of Gujarat reported in AIR 2010 SC 3175 and State of Punjab Vs. Central Bureau of Investigation reported in AIR 2011 SC 2962; that re-investigation of the case by competent agency like C.B.I. is highly essential and required to unearth the truth and the causes behind unnatural death of petitioner’s son who had to in fact moved towards Gaya in Election campaign along with his lawyer friend, but was found dead in unnatural circumstances in a opposite direction at a substantial distance at Jagdishpur in the District of Bhojpur. Nature of injury, condition of vehicle etc. indicates a different story but investigation appears narrowed and confined towards accidental death due to own negligence of the deceased.

10. On careful consideration of the 9 decisions relied upon it appears that law is very much clear on the issue that though there is no inflexible guidelines but the High Court should exercise its extra ordinary powers sparingly, cautiously in rare cases only for substantive reasons, there appears strong circumstance indicating no other way available to arrive at any definite conclusion. Investigation may even be ordered by C.B.I. but not as a matter of routine merely because a party has leveled some allegations against the local police. In the instant case, relating to unnatural, but apparently accidental death of petitioner’s son, allegation was leveled only against local police officer of a lower rank for his alleged insertion of a few words in the fardbeyan of informant that too has already been deleted by earlier order of this court. it is not a case wherein high police officials are in any way involved in the commission of the crime etc. as it was before the Apex Court in the cases of State of West Bengal or Rubabbuddin Sheikh or State of Punjab (Supra).

11. On behalf of the respondents earlier decision of Apex Court in a case Sakiri Vasu Vs. State of U.P. reported in (2008)2 SCC 409 has been placed 10 whereon learned counsel for the petitioner also relied and its is contended on behalf of the respondent that if at all investigation is faulty the court below is competent enough to examine and direct re-investigation by the agencies competent to do so, of course, magistrate cannot entrust investigation upon C.B.I. The Apex Court in para 13 – 17 and 27 has held: -

13. The same view was taken by this Court in Dilawar Singh v. State of Delhi (JT vide para 17). We would further clarify that even if an FIR has been registered and even if the police has made the investigation, or is actually making investigation, which aggrieved person feels is not proper, such a person can approach Magistrate under Section 156(3) CrPC, and if the Magistrate is satisfied he can order a proper investigation and take other suitable steps and pass such order(s) as he thinks necessary for ensuring a proper investigation. All these powers a Magistrate enjoys under Section 156(3) CrPC.

14.Section 156(3) states: “ 156(3) Any Magistrate empowered under Section 190 may order such an 11 investigation as abovementioned.” The words “as abovementioned” obviously refer to Section 156(1), which contemplates investigation by the officer in charge of the police station.

15. Section 156(3) provides for a check the Magistrate on the police performing its duties under Chapter XII CrPC. In cases where the Magistrate finds that the police has not done its duty of investigation the case at all, or has not done it satisfactorily, he can issue a direction to the police to do the investigation properly, and can monitor the same.

16. The power in the Magistrate to order further investigation under Section 156(3) is an independent power and does not affect the power of investigation officer further investigate submission of his report vide Section 173(8). Hence the Magistrate can order reopening of the investigation even after the police submits the final report, vide State of Bihar v. J.A.C. Saldanha (para