06 November 2012
Supreme Court
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VIPUL SHITAL PRASAD AGARWAL Vs STATE OF GUJARAT & ANR.

Case number: Special Leave Petition (crl.) 3672 of 2012


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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

SPECIAL     LEAVE     PETITION     (CRL.)No.3672     of     2012   

VIPUL SHITAL PRASAD AGARWAL …   PETITIONER  

VS. STATE OF GUJARAT & ANR. …   RESPONDENTS

J     U     D     G     M     E     N     T   

ALTAMAS     KABIR,     CJI.   

1. This Special Leave Petition is directed against  

the judgment and order dated 20th March, 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 (Cr.P.C.), being SCRMA  

No.2698 of 2011.

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2. There are certain special features in this case  

which need to be recorded in order to decide this  

matter.

3. The Petitioner was at the relevant time posted as  

Superintendent of Police, Banaskantha, Gujarat.  On  

28th December, 2006, one Tulsiram Prajapati was killed  

in an encounter and a First Information Report  

(F.I.R.), being I.C.R.No.115 of 2006, was registered  

with the Ambaji Police Station, Banaskantha, Gujarat,  

against unidentified persons under Sections 307, 427  

and 34 of the Indian Penal Code, 1860 (IPC), Section  

25(1)(A) of the Arms Act, 1959, and Section 135 of  

the Bombay Police Act, 1951.   

4. In 2007, Nirmala 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 (C.B.I.), 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 I.P.C., together with

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Section 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  

the C.I.D. crime, on 3rd May, 2010, and charge-sheet  

was, thereafter, filed against the accused persons,  

including the Petitioner, on 30th July, 2010.   

5. 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 F.I.R. No.115 of 2006 was lodged  

with the Ambaji Police Station on 28th December, 2006,  

resulting in the arrest of the Petitioner by the  

C.I.D. crime, on 3rd May, 2010, and the filing of  

charge-sheet on 30th July, 2010, within 90 days of his  

arrest.

6. 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 8th  

April, 2011, refused to accept the investigation

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conducted and completed by the State C.I.D. and  

directed as follows :

“39. In view of the above discussion, the Police  Authorities of the Gujarat State are directed  to handover all the records of the present  case to the CBI within two weeks from this  date and the CBI shall investigate all aspects  of the case relating to the killing of  Tulsiram Prajapati and file a report to the  concerned court/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 state of Gujarat, Rajasthan  and Andhra Pradesh to cooperate with the CBI  Authorities in conducting the investigation.”

7. 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.

8. Pursuant to the directions given by this Court,  

the C.B.I. registered a separate F.I.R. on 29th April,  

2011, being R.C.-3(S)/2011/Mumbai dated 29th April,  

2011.  On 31st May, 2011, the C.B.I. applied before  

the Court of Sessions Judge Palanpur, Banaskantha,  

Gujarat, in Sessions Case No.58 of 2010, inter alia,

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for the following directions :

“It is, therefore, humbly prayed that keeping in  view the orders dated 08.04.2011 of the Hon’ble  Supreme Court of India, the articles submitted by  the Gujarat Police as per the list enclosed (as  desired by this Hon’ble Court) along with the  Charge Sheet No.50/2010 dated 30.07.2010 vide CC  No.1439/10 dated 30.07.2010 and supplementary  Charge Sheets in case FIR No.115/2006 dated  28.12.2006 of PS Ambaji, District Banaskantha may  be released and handed over to the 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 finalized.  And for this  the applicant shall ever pray.”

9. The said application was allowed by the Sessions  

Judge on 9th June, 2011.

 10. 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 learned Sessions Judge, Palanpur, on 16th  

August, 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.   

11. Having regard to the order of the learned Sessions

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Judge, the Petitioner moved an application before the  

Judicial Magistrate, First Class, Danta, on 2nd  

September, 2011, for bail, which was rejected on 7th  

October, 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 7th October, 2011,  

passed by the Judicial Magistrate, First Class,  

rejecting his prayer for bail.  Another application  

for regular bail, being Criminal Misc. Application  

No.04 of 2012, was also filed on behalf of the  

Petitioner before the Sessions Judge, Palanpur, on 2nd  

January, 2012, on the limited ground of delay in the  

trial.  The said bail application was dismissed by the  

2nd Additional Sessions Judge on 27th February, 2012.  

The High Court also rejected the Petitioner’s  

application challenging the order of the Magistrate by  

its order dated 20th March, 2012.  On 9th April, 2012,  

the Petitioner’s Criminal Misc. Application No.4729 of  

2012, challenging the order of the 2nd Additional  

Sessions Judge dated 27th February, 2012, was dismissed  

by the High Court.  It is against the said order that  

the present Special Leave Petition has been filed.  

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12. 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 Cr.P.C.  Learned counsel  

urged that since after registering a fresh F.I.R. and  

commencing of fresh investigation, as directed by this  

Court, the C.B.I. had failed to file charge-sheet  

pursuant to such F.I.R., 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 Cr.P.C.  Learned  

counsel also emphasized that the Petitioner was in  

custody since his arrest on 3rd May, 2010, and on the  

other hand, the trial was being delayed.

13. Mr. Sushil Kumar urged that since the earlier  

investigation by the State police had not been  

accepted by this Court and the C.B.I. 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

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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 F.I.R. within a period of 90 days, as  

stipulated under Section 167(2) Cr.P.C., the  

Petitioner was entitled to be released on default  

bail, as a matter of right.

14. Mr. Sushil Kumar made it clear that he was basing  

his submissions mainly on the ground available under  

Section 167(2) Cr.P.C. and the fact that the trial had  

been delayed for a long period during which the  

Petitioner has remained in custody.    

15. Appearing for the C.B.I., 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

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first F.I.R., 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 F.I.R. filed by the C.B.I.  

Accordingly, the benefit of default bail under Section  

167(2) Cr.P.C. was not available to the Petitioner.  

Mr. Tankha also submitted that the investigation  

started by the C.B.I. was in continuation of the  

investigation initially commenced on the basis of  

F.I.R. No.115 of 2006 of Ambaji Police Station and  

that the lodging of a fresh F.I.R. by the C.B.I. was  

only for the purpose of enabling the C.B.I. to take  

over the investigation from the State police in terms  

of the directions given by this Court.   

16. 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 C.B.I., 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  

F.I.R., which would have to be treated as a  

supplementary charge-sheet to the original charge-

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sheet filed in F.I.R. 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)  

Cr.P.C. had been made on behalf of the Petitioner in  

connection with F.I.R. No.115 of 2006, of Ambaji  

Police Station dated 28th December, 2006, and not in  

connection with F.I.R. No.RC-3(S)/2011/Mumbai dated  

9th April, 2011, filed by the C.B.I.

17. Mr. Tankha, therefore, contended that the Special  

Leave Petition filed by the Petitioner was entirely  

misconceived and was liable to be dismissed.

18. 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 F.I.R.No.115 of 2006,  

lodged by the local police with the Ambaji Police  

Station, though the submissions in respect thereof  

have been made in connection with the subsequent  

F.I.R. lodged by the C.B.I.  It is obvious that the  

Petitioner was fully aware of the situation while

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making the application for grant of bail, knowing that  

he was under arrest in connection with the first  

F.I.R. and not under the second F.I.R. lodged by the  

C.B.I.  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 F.I.R.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.

    19. 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.

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20. 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 the 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.   

…………………………………………………CJI.

     (ALTAMAS KABIR)

………………………………………………………J.

             (SURINDER SINGH NIJJAR)

New Delhi Dated: November 6, 2012.

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IN THE SUPREME COUR OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL     MISCELLANEOUS     PETITION     NO.11364     OF     2012    WITH

SPECIAL     LEAVE     PETITION     (CRL.)     NO.3672     OF     2012   

Vipul Shital Prasad Agarwal       ….Petitioner

                             Versus

State of Gujarat & Another                ….Respondents

J     U     D     G     M     E     N     T   

Chelameswar,     J.   

1. While I agree with the conclusion reached by Hon’ble  

the Chief Justice of India, I wish to add a few lines.   

2. 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

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Court in Writ Petition (Criminal) No.115 of 2007 dated  

8th April 2011 directing the Central Bureau of  

Investigation (CB) to conduct an investigation pertaining  

to all aspects of killing of Tulsiram Prajapati would  

necessarily mean that the charge-sheet filed by the  

Gujarat Police (CID) stood rejected. In my view, the  

submission is misconceived for the following reasons.  

3. Section 173 of the Code of Criminal Procedure, 1973  

(for short “the 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)1 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  

1  Section 173(2)(i) As soon as it is completed, the officer in charge of  the police station shall forward to a Magistrate empowered to take  cognizance of the offence on a police report, a report in the form  prescribed by the State Government, stating—

(d) whether any offence appears to have been committed and, if so, by  whom.

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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 of  

the CrPC of all persons whom the prosecution proposes  

to examine as witnesses.2  Sub-section (8)3 recognizes  

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 of the CrPC could direct the  

Investigating Officer to make a further investigation  

2 Section 173(5). When such report is in respect of a case to which  section 170 applies, the police officer shall forward to the Magistrate  along with the report—t

(a) all documents or relevant extracts thereof on which the  prosecution proposes to rely other than those already sent to the  Magistrate during investigation;

(b) the statements recorded under section 161 of all the  persons whom the prosecution proposes to examine as its  witnesses.

3  Section 173(8). Notwithstanding in this section shall be deemed to  preclude further investigation in respect of an offence after a report  under sub-section (2) has been forwarded to the Magistrate and, where upon  such investigation, the officer in charge of the police station obtains  further evidence, oral or documentary, he shall forward to the Magistrate  a further report or reports regarding such evidence in the form prescribed  and the provisions of' sub-section (2) to (6) shall, as far as may be,  apply in relation to such report or reports as they apply in relation to a  report forwarded under sub-section (2).

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pending any orders by the concerned Magistrate 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.4

4. 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 concerned Magistrate  

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 concerned Court is not completely satisfied with the  

material collected by the investigating agency and is of  

the opinion that possibly some more material is required  

4  Kashmeri Devi v. Delhi Administration & Another (1988 (Supp.) SCC 482  para 7  

“7. Since according to the respondents charge-sheet has already been submitted to  the Magistrate we direct the trial court before whom the charge-sheet has been submitted  to exercise his powers under Section 173(8) CrPC to direct the Central Bureau of  Investigation for proper and thorough investigation of the case. On issue of such direction  the Central Bureau of Investigation will investigate the case in an independent and  objective manner and it will further submit additional charge-sheet, if any, in accordance  with law. The appeal stands disposed of accordingly.”

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to be collected in order to sustain the allegations of the  

commission of the offence indicated in the report.   

5. Therefore, the submission of Mr. Sushil Kumar,  

learned senior advocate appearing for the petitioner, that  

the directions given by this Court earlier in Writ Petition  

(Criminal) No.115 of 2007 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 the CBI purported to have registered a  

“fresh FIR”, in my opinion, does not lead to conclusion in  

law that the earlier report or the material collected by the  

Gujarat Police (CID) on the basis of which they filed the  

charge-sheet ceased to exist. It only demonstrates the  

administrative practice of the CBI.

6. In my view, notwithstanding the practice of the CBI  

to register a “fresh FIR”, the investigation undertaken by  

the CBI is in the nature of further investigation under  

Section 173 (8) of the CrPC pursuant to the direction of

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this Court.

………………………………….J.                                      (J. CHELAMESWAR )

New Delhi; November 6, 2012.