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Hasanbhai Valibhai Qureshi v. State Of Gujarat And Others
Factual and Procedural Background
The appellant is the original complainant in FIR No. 134 of 2003 registered at Police Station Sub-District Veraval, District Junagadh, Gujarat. According to the FIR, during the night of 23-9-2003 an unlawful assembly armed with deadly weapons looted and set ablaze shops belonging to members of another community. Although Sections 395 and 120-B of the Indian Penal Code were initially invoked, the police deleted these sections within a few hours, enabling the arrested accused to secure bail. Alleging biased investigation under pressure from a local MLA, the appellant filed a writ petition in the Gujarat High Court seeking reinvestigation by an independent agency. A learned Single Judge dismissed the petition, holding that the Criminal Procedure Code (CrPC) provides adequate remedies for further investigation under the supervision of the trial court. The appellant challenged that decision before the Supreme Court.
Legal Issues Presented
- Whether the Supreme Court should direct reinvestigation by an independent agency in view of alleged partisan conduct of the local police, including deletion of Sections 395 and 120-B IPC.
- Whether the High Court erred in declining relief under Article 226 of the Constitution on the ground that the CrPC offers alternative remedies for alteration of charge and further investigation.
- To what extent courts and investigating agencies may order or conduct further investigation after cognisance has been taken and charges have been framed.
Arguments of the Parties
Appellant's Arguments
- The investigation was tainted by undue influence of the local MLA, demonstrated by the hasty deletion of serious offences without proper inquiry.
- Leaving the matter to the discretion of the same prosecuting agency would be futile, as its conduct shows a bias in favour of the accused.
- The High Court overlooked the complainant’s limited ability to secure fair investigation when the police themselves resist application of the relevant penal provisions.
Respondents' Arguments
- The High Court correctly held that the CrPC provides mechanisms for further investigation and alteration of charges under the supervision of the trial court.
- No legal infirmity exists in the decision to delete Sections 395 and 120-B because detailed investigation revealed those offences were not made out.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Kantilal Chandulal Mehta v. State of Maharashtra (1969) 3 SCC 166; AIR 1970 SC 359 | Court’s power under the CrPC to alter or amend a charge at any stage, provided the accused is not prejudiced. | Cited to show that trial courts may add Section 120-B IPC if evidence justifies it, alleviating concern over its earlier deletion. |
| Ram Lal Narang v. State (Delhi Administration) (1979) 2 SCC 322; AIR 1979 SC 1791 | Further investigation is permissible even after the court has taken cognisance. | Relied upon to emphasise that defective or incomplete investigations can still be cured, and that delay alone should not preclude further investigation. |
Court's Reasoning and Analysis
After granting leave, the Court directed the Director General of Police (DGP), Gujarat, to report on the propriety of the investigation. The DGP conceded that deletion of Section 120-B IPC “does not appear to be proper,” acknowledged investigative lapses, and noted that the trial court had already framed a charge under Section 120-B IPC against three accused. Departmental proceedings against the original investigating officer were initiated.
The Court examined statutory provisions:
- Sections 228 and 240 CrPC (framing of charge) and Section 216 CrPC (alteration or addition of charge) empower the trial court to modify charges at any stage before judgment.
- Section 217 CrPC safeguards the accused by allowing recall of witnesses when charges are altered.
- Section 173(8) CrPC authorises the police to conduct further investigation even after the court has taken cognisance.
Drawing on Kantilal Mehta, the Court noted that altering or adding charges is permissible so long as it does not prejudice the accused. Relying on Ram Lal Narang, the Court underscored that the goal of criminal justice is to ascertain the truth; therefore, neither the court’s nor the investigating agency’s hands should be tied merely because further investigation might delay the trial.
While recognising that the Sessions Court had already framed a charge under Section 120-B IPC and that day-to-day hearings were scheduled, the Supreme Court clarified that, should new facts emerge, the police are free—indeed obliged—to seek the trial court’s leave to undertake further investigation. The Court expressly refrained from commenting on the merits of the underlying criminal case.
Holding and Implications
Appeal disposed of with liberty for further investigation in accordance with law.
Direct Effect: The Supreme Court did not order a fresh investigation by an independent agency but affirmed that both the police and the trial court possess statutory authority to add or alter charges and to conduct further investigation under Sections 216 and 173(8) CrPC. The appellant’s concerns can thus be addressed within the existing procedural framework.
Broader Implications: Although no new legal precedent was established, the judgment reiterates that (1) deletion of serious penal provisions can be revisited during trial, and (2) discovery of investigative lapses does not foreclose further investigation even after cognisance, thereby reinforcing the judiciary’s commitment to a truth-oriented criminal process.
Arijit Pasayat, J.— Leave granted.
2. The appellant who is the original complainant in the case relating to FIR No. 134 of 2003 in 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.
3. Main prayer in the writ petition was for issuance of appropriate writ for reinvestigation by an independent agency. The prayer was made alleging that the local police had succumbed to the pressure exercised by the local MLA and the investigation was not carried out in a straightforward manner. It was alleged that on 23-9-2003 at 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 120-B of the Indian Penal Code, 1860 (in short “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 120-B 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 indicates the applicability of those provisions and commission of such offences, contrary to what has been stated by the prosecuting agency.
4. The High Court noted that specific allegations were made regarding the biased approach of the police officials under the influence of the local MLA. The petition was resisted on the ground that on detailed investigation it was noticed that the offences relatable to Sections 395 and 120-B 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 that the police was not the ultimate authority which 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 (in short “the Constitution”) was not entertained.
5. 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 120-B 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 be expected to be reasonable or cooperate fairly and just in order to effectively enforce and maintain law and order.
6. 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.
7. 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 120-B 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 of 2003 on 22-3-2004 against three of the accused persons under Section 120-B IPC. It has been stated that though retention of Section 120-B 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 a 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 the process of trial unnecessarily.
8. Section 228 of the Code in Chapter XVII and Section 240 in Chapter XIX deal with framing of the charge during trial before a Court of Session 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.
9. In Kantilal Chandulal Mehta v. State of Maharashtra (1969) 3 SCC 166, 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.
10. 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.
11. 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.
12. 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 cognisance 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.
13. In Ram Lal Narang v. State (Delhi Admn.) (1979) 2 SCC 322, AIR 1979 SC 1791 it was observed by this Court that further investigation is not altogether ruled out merely because cognisance 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 the 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 matter 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 in the way of 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.
14. The appeal is accordingly finally disposed of, on the above terms.
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