Lalita Devi v. The State Of Bihar Through Director General Of Police, Old Secretariate, Bihar, Patna

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Writ Jurisdiction Case No.806 of 2021 Arising Out of PS. Case No.-451 Year-2019 Thana- BALIYA District- Begusarai ====================================================== Lalita Devi W/O Ramsharan Sharma R/O Village-Balachak Sadanandpur, P.SBallia, District-Begusarai. ... ... Petitioner/s

Versus

1.

The State Of Bihar Through Director General Of Police, Old Secretariate, Bihar, Patna Bihar 2.

The Senior Superintendent Of Police, Begusarai. Begusarai. 3.

The Officer Incharge, P.S-Ballia, District Begusarai. Begusarai. ... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s :

Mr.Apurva Kumar, Adv.

For the Respondent/s :

Mr.Iqbal Asif Niyazi, AC to GP-5 ====================================================== CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD ORAL ORDER 26-09-2022 A supplementary affidavit has been filed. Let it be taken on the record.

Heard Mr. Apurva Kumar, learned counsel for the petitioner and Mr. Iqbal Asif Niyazi, learned AC to GP-5 for the State.

This case has been taken up out of turn on mentioning made by learned counsel for the petitioner saying that the reliefs prayed in this writ application may be considered keeping in view the common order dated 09.09.2022 passed by this Court in Cr.WJC No.153 of 2017 and other analogous cases.

Learned counsel for the petitioner has drawn the

2/8 attention of this Court towards the order dated 22.04.2022 passed by the learned C.J.M., Begusarai in Balia P.S.Case No.451 of 2019 whereby he had forwarded the petition submitted on behalf of the informant for consideration to the Additional Director General of Police (Law and Order), Patna.

The grievance of the petitioner is that till date the investigation has not progressed, the accused persons have been allowed to walk free and they are threatening the informant of dire consequences if she pursues this case against them. It is a case with regard to the murder of the son of the petitioner. Till date the investigation is pending and almost three years are going to lapse.

Mr. Iqbal Asif Niyazi, learned AC to GP-5 submits that keeping in view the facts and circumstances of the case, this Court may issue appropriate directions to the respondent authorities as well as the learned court below in the matter of proper and fair investigation and arrest of the accused etc. Taking note of the submissions made in the writ application but without going through the merit of the allegations at this stage, this Court is of the considered opinion that the role of learned CJM does not stop with

3/8 passing of the order dated 22.04.2022 only. Once he had forwarded the copy of the petition to the Additional Director General of Police (Law and Order), Patna it was incumbent upon him to ensure that the Additional Director General of Police (Law and Order), Patna properly communicate him the action taken on the said petition.

This Court has after referring several judgments of the Hon'ble Supreme Court pointed out the powers conferred upon a learned Magistrate under Section 156(3) Cr.P.C. and in this regard order dated 09.09.2022 passed by this Court in Cr.WJC No.153 of 2017 may be referred to.

This Court, therefore directs the Chief Judicial Magistrate, Begusarai and/or learned Judicial Magistrate-1st Class, Begusarai within whose jurisdiction this case is pending to monitor the investigation of the case and ensure that the investigation takes place in a proper and fair manner. If the I.O. of the case is sitting over the matter, he should be changed immediately and it will be responsibility of the Sr. Superintendent of Police/Superintendent of Police, Begusarai to ensure that a competent investigating officer be deputed. So far as the arrest of the accused persons is concerned, it is for the I.O. and the supervising authority of

4/8 the case to take a view thereon as to their requirement of custodial interrogation etc. and proceed accordingly. The common order dated 09.09.2022 passed in Cr.WJC No.153 of 2017 and other analogous matters is being reproduced hereunder for a ready reference:- "(I) In the cases where the investigation of the case is still pending, the concerned writ petitioner/an 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

5/8 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 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

6/8 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. must take immediate 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.

7/8 Police and to take appropriate measures in accordance with law. While exercising his power under Section 156(3) Cr.P.C., the learned Magistrate shall definitely monitor the investigation, though he cannot investigate the case himself and will not act as supervisory authority but it is certainly within his domain to ensure that the investigation is done properly and for this purpose without interfering with the power of the Investigating Officer or the Supervising Authority to conduct an investigation, the 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.

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

This writ application stands disposed of accordingly. (Rajeev Ranjan Prasad, J) arvind/- U 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'.