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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 126 OF 2012 ARISING OUT OF

Special Leave to Appeal (Crl) No(s).3486/2011

AZIJA BEGUM                            ... APPELLANT(S)  

                VERSUS

STATE OF MAHARASHTRA & ANR         ... RESPONDENT(S)

JUDGMENT

GANGULY, J.

1. Heard learned counsel for the parties.

2. Leave granted.

3. The subject matter of challenge in this appeal is  

a rather cryptic order of the High court by which the  

High Court, with respect, disposed of a petition under  

Article 227 of the Constitution without adverting to  

the questions involved.  

4. The material facts of the case which are necessary  

for us to consider for the purpose of disposal of the  

issues are that one Imran S/o Anwar Khan was found

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murdered under mysterious circumstances. His dead body  

was found on 22nd February, 2009 at the entrance of the  

Government  hospital.  Prior  to  that  Imran  was  found  

missing and the appellant herein went to the police  

station to lodge her First Information Report over that  

but the police sent the appellant back after recording  

a mere 'missing report'.  Even though at that point of  

time,  the  appellant  was  said  to  have  informed  the  

police that Imran was allegedly kidnapped by one Ijani  

Khan, but, the police recorded a 'missing' report only.

5. After that as the appellant came to know that the  

dead body of Imran was lying near the entry of the  

Government hospital, she immediately went to the police  

station  again  and  informed  the  police  of  this  fact  

also. According to the appellant's version, the police,  

instead of recording her statement and registering an  

F.I.R.  passed  on  the  said  information  to  one  Ijani  

Khan.

6. Two  days  thereafter,  the  wife  of  the  deceased  

lodged an F.I.R. and on that basis, investigation was  

undertaken  and  two  sons  of  the  appellant,  namely,  

Jaffar Khan and Sherkhan, were arrested.

7. The  appellant  not  being  satisfied  with  the  

aforesaid  state  of  investigation,  filed  a  petition

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before the learned Magistrate  under Section 173(8) of  

Code  of  Criminal  Procedure.  The  learned  Magistrate,  

after considering the materials on  record, passed  a  

detailed order, the concluding part of which reads as  

under:

“As  the  serious  allegations  have  been  made against police  authorities as  well as  the present accused, in my opinion, further  investigation is required because once police  investigated the offence, then for the same  offence separate crime as well as case number  is  not required. Therefore, in  my  opinion,  further investigation is necessary. Hence I  pass following order:

    ORDER

P1 Jinsi is hereby directed to make the  further investigation in the present offence  and submit the report within time.

8. The main grievances of the appellant are that even  

though the Magistrate was not satisfied with the way in  

which  the  investigation  was  proceeded  and   wanted  

further investigation to be conducted, but strangely  

handed  over  the  investigation  to  the  same  police  

authorities  about  whose  investigation  the  Magistrate  

was not satisfied.  

9. The  appellant's  contention  is  that  once  the  

Magistrate was prima facie satisfied that the matter  

was  not  properly  investigated  and  required  further  

investigation,  the  investigation  should  have  been

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handed over to some other investigating agency.

10. When the order of the Magistrate was challenged by  

the appellant before the High Court on the basis of a  

petition under Article 227 of  the  Constitution, the  

said petition came to be disposed of by the High Court  

by an unusually laconic order:

“1.  Heard.  At  the  instance  of  the  applicant, since he felt that statements of  witnesses are not recorded, police officer  has recorded statement of Shaikh Rafik Shaikh  Daud, copy whereof is annexed to the report.  If  the  complainant  feels  that  few  more  witnesses are still left, he can bring such  witnesses to the investigator and to ensure  to facilitate recording of statement.

2.  Purpose  of  the  writ  petition  is  achieved.  Consequently  nothing  survives.  Petition disposed of.”

11. We are of the considered opinion that the order of  

the High Court is very cryptic and the High Court has  

not looked into the material facts of the case. It was  

expected of the High Court to look into the matter with  

greater care and caution as a very serious offence had  

taken place followed by an investigation in respect of  

which  the  Magistrate  himself  had  expressed  serious  

reservations but failed to give proper direction.

12. Learned counsel for the appellant submits before  

us that the appellant wanted the investigation to be

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fairly conducted by  an independent agency and  urged  

before us for an order for the investigation to be  

conducted not by the same police authorities which had  

undertaken the investigation earlier but by any other  

independent investigating agency.

13. In the facts and circumstances of this case, we  

find that every citizen of this country has a right to  

get  his or her  complaint properly investigated. The  

legal  framework  of  investigation  provided  under  our  

laws cannot be made selectively available only to some  

persons and denied to others.  This is a question of  

equal  protection  of  laws  and  is  covered  by  the  

guarantee under Article 14 of the Constitution.  The  

issue is akin to ensuring an equal access to justice. A  

fair and proper investigation is always conducive to  

the ends of justice and for establishing rule of law  

and maintaining proper balance in law and order. These  

are very vital issues in a democratic set up which must  

be taken care of by the Courts.

14. Considering  the  aforesaid  vital  questions,  we  

dispose  of  this  appeal  by  directing  the  second  

respondent, the Additional Director General of Police,  

State CID, Pune Division, Pune, Maharashtra to order a  

proper investigation in the matter by deputing a senior

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officer from his organization to undertake a thorough  

investigation  and  examine  in  detail  the  facts  and  

circumstances of the case and then furnish a report to  

the trial Court within a period of three months from  

the date of taking charge of the investigation. The  

investigation is to be taken up within two weeks from  

the  date  of  service  of  this  order  on  the  second  

respondent.  The  matter shall thereafter proceed  in  

accordance with law. We hope and expect an impartial  

investigation of the case will take place.

15. The appeal is accordingly allowed to the extent  

indicated above.  

.............................J. (ASOK KUMAR GANGULY)            

.............................J.   (T.S. THAKUR)                   

NEW DELHI, 12-01-2012