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.