Avinash Kumar v. The State Of Bihar Through The Chief Secretary Govt Of Bihar, Patna.

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Writ Jurisdiction Case No.705 of 2021 Arising Out of PS. Case No.-382 Year-2020 Thana- MURLIGANJ District- Madhepura ====================================================== AVINASH KUMAR Son of Sri Upendra Paswan Resident of Ward No. 11, Nagar Panchayat Murliganj, P.S. Murliganj, District - Patna. ... ... Petitioner

Versus

1.

The State Of Bihar hrough The Chief Secretary Govt Of Bihar, Patna. 2.

The Principal Secretary, Department of Home, Govt. of Bihar, Patna. 3.

The Director General of Police, Bihar,Patna.

4.

The Superintendent of Police, Madhepura.

5.

The Sub Divisional Police officer, Madhepura. 6.

The officer In charge, Murliganj Police Station, Madhepura. 7.

The Investigating officer of Murliganj P.S. Case No. 382 of 2020, Murliganj, Madhepura.

8.

The Central Bureau of Investigation through its Director, Patna. 9.

The Additional Director General, Crime Investgation Department, Patna, Bihar.

... ... Respondents ====================================================== Appearance :

For the Petitioner/s :

Mr.Ansul,Advocate For the Respondent/s :

Mr. Ajay Kumar Sharma, AC to AG ====================================================== CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD ORAL ORDER 21-09-2022 The petitioner in the present case is seeking following reliefs:- "(i) For issuance of an appropriate writ in the nature of mandamus directing immediate unbiased, uninfluenced, impartial and fair investigation of SC/ST Case No. 107 of 2020 arising out of Murliganj P.S. Case No. 382 of 020 dated 10.12.2020 u/s 363, 365, 302, 120B, 201 IPC and U/s 392) (V) (VA) of the SC/ST (POA) Act by either Central Bureau of Investigation ) respondent no. 8) or Crime Investigation

2/8 Department, Bihar (Respondent no. 9) where the informant of the case has been made accused for killing of his own daughter with allegation of Honour killing while the post mortem of the deceased shows clear evidence of rape.

(ii) For issuance of a direction to the investigating agency so chosen to complete the investigation within such reasonable time as this Hon'ble Court may deem fit and proper, without taking any instructions and/or reporting the investigation to anyone, except this Hon'ble Court. (iii) It is further prayed that this Hon'ble Court be pleased to monitor such investigation to ensure fairness and efficacy in respect thereof."

From the statements made in the writ application it appears that the petitioner is the brother of Arvind Kumar Dimple who lodged Murliganj P.S. Case No. 382 of 2020 under Sections 363, 365 of the Indian Penal Code on 10.12.2020 for missing of his daughter. During investigation the dead body of victim girl was recovered and section 302, 201, 120B/201 IPC have been added in the FIR. It is stated that during investigation the I. O. recorded the statement of witnesses and on 15.03.2021 the police prayed for issuance of warrant of NBW against the petitioner and other family members of the deceased including

3/8 the informant.

In the nature of the materials present in this application, it appears that during investigation the I. O. has obtained NBW against the petitioner and other persons including the informant of the FIR.

In the present case this Court finds that the case is being investigated by the investigating agency and only because NBW has been obtained by the I. O. against the petitioner and other family members of the deceased including the informant cannot be said to be a plausible ground to hand over the investigation to any other agency. The petitioner will be at liberty to agitate his grievance before the competent authority/court as the case may be at appropriate stage in accordance with law.

If the petitioner has any grievance against the issuance of NBW, he may seek his remedy before appropriate forum in accordance with law.

So far as the prayer of the petitioner for fair and proper investigation of the case is concerned, recently, this Court vide order dated 09.09.2022 passed in Cr. W.J.C. No. 153 of 2017 issued certain directions for proper and fair investigation and the prayer of the petitioner is squarely covered under those directions which are being reproduced hereunder:- "(I) In the cases where the investigation of the case is still pending, the concerned writ petitioner/an

4/8 aggrieved person (hereinafter referred to as the 'writ petitioner' or 'an aggrieved person') may file an appropriate application before the Senior Superintendent of Police/Superintendent of Police of the concerned district drawing his attention towards the pending investigation. The aggrieved person shall submit his stand by way of an application with all supporting materials in the office of Senior Superintendent of Police/Superintendent of Police or send the same through registered post/speed post/email, as the case may be. A copy of the same shall also be sent to the investigating officer of the case.

(II) On receipt of such application from the aggrieved person, the Senior Superintendent of Police/ Superintendent of Police shall himself supervise the said case within a period of two weeks, wherever necessary he shall give a chance of hearing to the aggrieved person and all endeavours be made to consider the submissions as well as the materials produced before him.

(III) The Senior Superintendent of Police/ Superintendent of Police shall issue necessary instructions to any other supervising authority such as Dy.S.P. and also to the I.Os. of the case to complete the investigation from all angles within a reasonable period. What will be the reasonable period will depend upon the nature of the case and the kind of materials which are required to be dealt with. It is to be kept in mind that only because the Criminal Procedure Code does not provide for maximum limit within which an investigation is to be completed, it does not mean that the investigation is to be kept pending for decades. There are many judicial pronouncements of the Hon'ble Supreme Court in

5/8 which the prosecution has been quashed because the investigating agency failed to complete the investigation of the case despite lapse of several years. Undue delay in completion of investigation erodes public faith and confidence in the investigating agency.

(IV) Upon receipt of a request/application /representation from a person connected with the case and aggrieved by and dissatisfied with the investigation alleging improper investigation, complaints of threat to him or his family or the witnesses by his opponents, accused or his associates, it is the Sr. Superintendent of Police/Superintendent of Police of the concerned district and the Station House Officer of the concerned police station as well as the I.O.

of the case who would be duty bound to enter or caused to be entered the information in the station diary of the police station and examine or caused to be examined the threat perception of the informant and/or his family members/witnesses and take appropriate steps at the earliest, in the cases where threat perceptions are found to be genuine, they would take immediate measures to protect the life of the person(s) under threat. Delay in examining the request/representation leading to any serious consequences shall in itself be a matter of enquiry and action against the erring police officials.

(V) As regards the grievance that accused persons are not being arrested in cases involving serious and heinous offences the Senior Superintendent of Police/Superintendent of Police/Investigating Officer shall take appropriate steps keeping in view the law and judgments of the Hon'ble Apex Court on the subject. In the matter of absconding accused the I.O.

6/8 steps to arrest him and exhaust all other procedures in accordance with law with utmost expedition.

(VI) This Court has already reproduced the extracts from judgment of the Hon'ble Supreme Court in the case of Sakiri Vasu (supra). In the light of the said judgment, this Court directs that in all these cases the learned Magistrate(s) in whose court the case is pending, shall, without seeking any application from the informant monitor the investigation. They are fully competent to take a view as to whether a proper investigation is taking place or not. Learned Magistrates are expected to exercise their powers under Section 156(3) Cr.P.C. to ensure that investigation of the case pending before the learned Magistrate is duly investigated.

If it is found that the Investigating Officer is not proceeding with the investigation expeditiously and is keeping the same pending without rhyme or reason and in the opinion of the learned Magistrate it is found to be a case of inaction on the part of the Investigating Officer, the learned Magistrate would be well within his powers to direct the Senior Superintendent of Police/Superintendent of Police to change the Investigating Officer, to supervise the case himself by the Senior Superintendent of Police/Superintendent of Police and to take appropriate measures in accordance with law. While exercising his power under Section 156(3) Cr.P.C.

7/8 learned Magistrate may issue appropriate directions which in his opinion is required for conduct of proper investigation. What would be the nature of such direction(s) in a given case cannot be put in a straight jacket formula and it is for the learned Magistrate to look into this aspect of the matter on case to case basis. An application filed by an aggrieved person with prior service of copy upon the learned Public Prosecutor/A.P.P. seeking directions for proper investigation must be heard expeditiously and the same be disposed of within a period of 30 days from the date on which such application is moved before the learned Magistrate on the first date. If the learned Magistrate fails to exercise his power under Section 156(3) Cr.P.C.

either on his own or on filing of the application by the aggrieved person, an appropriate application may be brought before this Court for an order/direction and monitoring as the case may be. (VII) If any of the directions issued by the learned Magistrate in accordance with the order of this Court as stated above to the Senior Superintendent of Police/Superintendent of Police/investigating officer, unless otherwise interfered with by a competent court of law, is not given effect to by the concerned authorities, it will be taken to be a case of contempt of this Court and the learned Magistrate may inform this Court as regards the willful disobedience or disregard shown to the order/orders, direction/directions issued by him in terms of this judgment.

In such circumstance an aggrieved person may also file an application seeking initiation of contempt.

(VIII) All the stake-holders in the present writ applications shall act accordingly. A copy of this order be sent to the Director General of Police, Bihar

8/8 to enable him to issue necessary instructions at the earliest."

This application stands disposed of accordingly. (Rajeev Ranjan Prasad, J) avin/- U T Note: The ordersheet duly signed has been attached with the record. However, in view of the present arrangements, during Pandemic period all concerned shall act on the basis of the copy of the order uploaded on the High Court website under the heading 'Judicial Orders Passed During The Pandemic Period'.