Vipul Shital Prasad Agarwal v. State Of Gujarat And Another

The Judgments of the Court were delivered by

Altamas Kabir, C.J (for himself and Nijjar, J.)— This special leave petition is directed against the judgment and order dated 20-3-2012 passed by the Gujarat High Court dismissing the petition filed by the petitioner, Dr Vipul Shital Prasad Agarwal, under Articles 226 and 227 of the Constitution, read with Section 482 of the Code of Criminal Procedure, 1973 (CrPC), being SCRMA No. 2698 of 2011.

2. There are certain special features in this case which need to be recorded in order to decide this matter. The petitioner was at the relevant time posted as Superintendent of Police, Banaskantha, Gujarat. On 28-12-2006, one Tulsiram Prajapati was killed in an encounter and a first information report (FIR), being ICR No. 115 of 2006, was registered with Ambaji Police Station, Banaskantha, Gujarat, against unidentified persons under Sections 307, 427 and 34 of the Penal Code, 1860 (IPC), Section 25(1-A) of the Arms Act, 1959, and Section 135 of the Bombay Police Act, 1951.

3. In 2007, Nirmala Narmada Bai, the mother of the deceased, filed Writ Petition (Crl.) No. 115 of 2007, before this Court praying for an inquiry into the incident by the Central Bureau of Investigation (CBI), and while the same was pending, the prosecution, upon completion of investigation, added Sections 302, 364, 307, 333, 334, 427, 365, 368, 193, 197, 201, 120-B, 471 read with Section 34 IPC, together with Sections 25(1-A) and 27 of the Arms Act, 1959, as also Section 135 of the Bombay Police Act, against 12 police officers, including the petitioner. Consequent thereupon, the petitioner was arrested by CID, Crime on 3-5-2010 and charge-sheet was, thereafter, filed against the accused persons, including the petitioner, on 30-7-2010.

4. One of the strange features of this case, therefore, is that in the case which was registered against the victim, 12 police officers, including the petitioner, came to be arraigned as accused in what was alleged to be a fake encounter. However, the fact remains that FIR No. 115 of 2006 was lodged with Ambaji Police Station on 28-12-2006, resulting in the arrest of the petitioner by CID, Crime on 3-5-2010 and the filing of charge-sheet on 30-7-2010, within 90 days of his arrest.

5. While considering the writ petition filed by the mother of the deceased [Writ Petition (Crl.) No. 115 of 2007], this Court, by its judgment and order dated 8-4-2011 (2011) 5 SCC 79 refused to accept the investigation conducted and completed by the State CID and directed as follows:

“71. In view of the above discussion, the police authorities of the Gujarat State are directed to hand over all the records of the present case to CBI within two weeks from this date and CBI shall investigate all aspects of the case relating to the killing of Tulsiram Prajapati and file a report to the court concerned/special court having jurisdiction within a period of six months from the date of taking over of the investigation from the State police authorities. We also direct the police authorities of the States of Gujarat, Rajasthan and Andhra Pradesh to cooperate with CBI Authorities in conducting the investigation.”

We have intentionally quoted the aforesaid direction of this Court, since the main plank of the submissions made on behalf of the petitioner in this special leave petition depends on an interpretation thereof.

6. Pursuant to the directions given by this Court, CBI registered a separate FIR on 29-4-2011, being RC-3(S)/2011.Mumbai dated 29-4-2011. On 31-5-2011 CBI applied before the Court of the Sessions Judge, Palanpur, Banaskantha, Gujarat, in Sessions Case No. 58 of 2010, inter alia, for the following directions:

“It is, therefore, humbly prayed that keeping in view the orders dated 8-4-2011 (2011) 5 SCC 79 of the Hon'ble Supreme Court of India, the articles submitted by Gujarat Police as per the list enclosed (as desired by this Hon'ble Court) along with Charge-sheet No. 50/2010 dated 30-7-2010 vide CC No. 1439/10 dated 30-7-2010 and supplementary charge-sheets in case FIR No. 115 of 2006 dated 28-12-2006 of PS Ambaji, District Banaskantha may be released and handed over to CBI for the purpose of fresh investigation.

It is further prayed that in the light of order of the Hon'ble Supreme Court of India, no further proceeding may be allowed in the case till the investigation of CBI is finalised. And for this the applicant shall ever pray.”

The said application was allowed by the Sessions Judge on 9-6-2011.

7. Since the investigation was not completed and the petitioner had been in custody for a long time, an application for bail was moved on his behalf in the Court of the learned Sessions Judge, Palanpur, on 16-8-2011, who rejected the same on the ground that the application ought to have been moved before the Judicial Magistrate, First Class, Danta, and not before the Sessions Court.

8. Having regard to the order of the learned Sessions Judge, the petitioner moved an application before the Judicial Magistrate, First Class, Danta, on 2-9-2011, for bail, which was rejected on 7-10-2011. The petitioner then moved the Gujarat High Court by way of Special Criminal Application No. 2698 of 2011, for quashing and setting aside the aforesaid judgment and order dated 7-10-2011, passed by the Judicial Magistrate, First Class, rejecting his prayer for bail. Another application for regular bail, being Criminal Miscellaneous Application No. 4 of 2012, was also filed on behalf of the petitioner before the Sessions Judge, Palanpur, on 2-1-2012, on the limited ground of delay in the trial. The said bail application was dismissed by the IInd Additional Sessions Judge on 27-2-2012. The High Court also rejected the petitioner's application challenging the order of the Magistrate by its order dated 20-3-2012. On 9-4-2012, the petitioner's Criminal Miscellaneous Application No. 4729 of 2012, challenging the order of the IInd Additional Sessions Judge dated 27-2-2012, was dismissed by the High Court. It is against the said order dated 20-3-2012 that the present special leave petition has been filed.

9. The major thrust of the submissions made by Mr Sushil Kumar, learned Senior Advocate, appearing for the petitioner, was that the petitioner was entitled to the benefit of statutory bail in terms of sub-section (2) of Section 167 CrPC. The learned counsel urged that since after registering a fresh FIR and commencing of fresh investigation, as directed by this Court, CBI had failed to file charge-sheet pursuant to such FIR within the stipulated period of 90 days, the petitioner was entitled to bail on account of such default in view of the provisions of sub-section (2) of Section 167 CrPC. The learned counsel also emphasised that the petitioner was in custody since his arrest on 3-5-2010, and on the other hand, the trial was being delayed.

10. Mr Sushil Kumar urged that since the earlier investigation by the State police had not been accepted by this Court and CBI was directed to conduct a fresh investigation, it would necessarily entail that the charge-sheet filed on the basis of the initial inquiry was also rejected by this Court, though not in explicit terms. Mr Sushil Kumar submitted that there could not be two charge-sheets arising out of the two FIRs in respect of a single incident and charge would have to be framed on the basis of one of the said two charge-sheets filed and, since the first investigation had not been accepted, the logical consequence would be that the first charge-sheet also stood quashed which would give the second charge-sheet due legitimacy. Accordingly, since the charge-sheet had not been filed in respect of the second FIR within a period of 90 days, as stipulated under Section 167(2) CrPC, the petitioner was entitled to be released on default bail, as a matter of right.

11. Mr Sushil Kumar made it clear that he was basing his submissions mainly on the ground available under Section 167(2) CrPC and the fact that the trial had been delayed for a long period during which the petitioner has remained in custody.

12. Appearing for CBI, Mr Vivek Tankha, learned Senior Advocate, submitted that there was a basic fallacy in Mr Sushil Kumar's submissions since the petitioner was arrested in connection with the first FIR, being No. 115 of 2006, in which charge-sheet had been filed within the stipulated period of 90 days and that he had not been arrested in connection with the second FIR filed by CBI. Accordingly, the benefit of default bail under Section 167(2) CrPC was not available to the petitioner. Mr Tankha also submitted that the investigation started by CBI was in continuation of the investigation initially commenced on the basis of FIR No. 115 of 2006 of Ambaji Police Station and that the lodging of a fresh FIR by CBI was only for the purpose of enabling CBI to take over the investigation from the State police in terms of the directions given by this Court.

13. On the question of delay in the trial, Mr Tankha pointed out that the same had been stayed at the instance of a co-accused and CBI, therefore, had no hand as far as delay of the trial is concerned. According to Mr Tankha, in any event, charge-sheet had already been filed even on the basis of the second FIR, which would have to be treated as a supplementary charge-sheet to the original charge-sheet filed in FIR No. 115 of 2006. Mr Tankha pointed out that it was also significant that the prayer for default bail in terms of Section 167(2) CrPC had been made on behalf of the petitioner in connection with FIR No. 115 of 2006 of Ambaji Police Station dated 28-12-2006, and not in connection with FIR No. RC-3(S)/2011.Mumbai dated 29-4-2011, filed by CBI.

14. Mr Tankha, therefore, contended that the special leave petition filed by the petitioner was entirely misconceived and was liable to be dismissed.

15. We have carefully considered the submissions made on behalf of the respective parties and we have little hesitation in rejecting Mr Sushil Kumar's submissions. One of the most significant features of this case is that the prayer for default bail was made on behalf of the petitioner in FIR No. 115 of 2006, lodged by the local police with Ambaji Police Station, though the submissions in respect thereof have been made in connection with the subsequent FIR lodged by CBI. It is obvious that the petitioner was fully aware of the situation while making the application for grant of bail, knowing that he was under arrest in connection with the first FIR and not under the second FIR lodged by CBI. In the event the second investigation is treated to be a fresh investigation and the petitioner had been arrested in connection therewith, the submissions made by Mr Sushil Kumar would have been relevant. However, since the prayer for default bail was made in connection with FIR No. 115 of 2006, in which charge-sheet had been filed within the stipulated period of 90 days, the argument with regard to the default bail was not available to the petitioner and such argument has, therefore, to be rejected. The other submission of Mr Sushil Kumar that since a fresh investigation was directed to be conducted by this Court, the earlier charge-sheet must be deemed to have been quashed, has to be rejected also on the same ground.

16. Even on the question of delay in concluding the trial, such delay has not been caused by the prosecuting authorities, but by a co-accused and advantage thereof cannot be taken by the petitioner.

17. Since no argument had been advanced on behalf of the petitioner on the merits of the case, we also refrain from looking into the same and on the basis of our aforesaid observations, we are not convinced that the special leave petition, along with Criminal Miscellaneous Petition No. 11364 of 2012, warrants any interference by this Court. The special leave petition and the criminal miscellaneous petition are, therefore, dismissed.

J. Chelameswar, J. (concurring)— While I agree with the conclusion reached by the Hon'ble the Chief Justice of India, I wish to add a few lines.

19. The necessary facts and submissions of the learned counsel for the petitioner are clearly set out in the judgment of My Lord the Chief Justice. I wish to deal with only one submission made on behalf of the petitioner, that the earlier judgment and order of this Court in Writ Petition (Criminal) No. 115 of 2007 dated 8-4-2011 (2011) 5 SCC 79 directing the Central Bureau of Investigation (CBI) to conduct an investigation pertaining to all aspects of killing of Tulsiram Prajapati would necessarily mean that the charge-sheet filed by Gujarat Police (CID) stood rejected. In my view, the submission is misconceived for the following reasons.

20. Section 173 of the Code of Criminal Procedure, 1973 (for short “CrPC”) obligates the police investigating a case to make a report to the Magistrate to take cognizance of the offence which is subject-matter of the investigation. Sub-section (2) indicates the various pieces of information which are required to be contained in the said report. Section 173(2)(i)(d) stipulates that the said report should state whether any offence appears to have been committed and, if so, by whom. If the investigating officer opines in the said report that an offence appears to have been committed by the persons named therein, he is also obliged to forward to the Magistrate all documents on which the prosecution proposes to rely along with the statements recorded under Section 161 CrPC of all persons whom the prosecution proposes to examine as witnesses. Sub-section (8) recognises the authority of the investigating officer/agency to make any further investigation in respect of any offence notwithstanding the fact that the report contemplated under sub-section (2) of Section 173 had already been submitted. It may be worthwhile noticing that under sub-section (3), even a superior police officer appointed under Section 158 CrPC could direct the investigating officer to make a further investigation pending any orders by the Magistrate concerned on the report submitted. It is settled law that a Magistrate to whom report is submitted under Section 173(2) can direct the investigating officer to make a further investigation into the matter. 1988 Supp SCC 482

21. In my opinion, the mere undertaking of a further investigation either by the investigating officer on his own or upon the directions of the superior police officer or pursuant to a direction by the Magistrate concerned to whom the report is forwarded does not mean that the report submitted under Section 173(2) is abandoned or rejected. It is only that either the investigating agency or the court concerned is not completely satisfied with the material collected by the investigating agency and is of the opinion that possibly some more material is required to be collected in order to sustain the allegations of the commission of the offence indicated in the report.

22. Therefore, the submission of Mr Sushil Kumar, learned Senior Advocate appearing for the petitioner, that the directions given by this Court earlier in Narmada Bai v. State of Gujarat (2011) 5 SCC 79 would necessarily mean that the charge-sheet submitted by the police stood implicitly rejected is without any basis in law and misconceived. Even the fact that CBI purported to have registered a “fresh FIR”, in my opinion, does not lead to a conclusion in law that the earlier report or the material collected by Gujarat Police (CID) on the basis of which they filed the charge-sheet ceased to exist. It only demonstrates the administrative practice of CBI.

23. In my view, notwithstanding the practice of CBI to register a “fresh FIR”, the investigation undertaken by CBI is in the nature of further investigation under Section 173(8) CrPC pursuant to the direction of this Court.